It is a hot, sunny day. The kind of weather that
draws tourists to the shores of Puerto Rico only to
head for the air-conditioned environs of the island's
grand hotels and casinos.
A man enters
the empty ballroom of the San Juan DuPont Plaza Hotel.
Twenty minutes earlier it had been filled with employees
as they confirmed a job strike for midnight. He walks
over to a stack of furniture that has been stored
in the corner of the room. He looks around. He places
a Sterno beneath the 6-foot-high pile of chairs and
dressers and packing material. He lights the Sterno
and walks away.
In the casino, guests are shooting craps, playing
the slots, laying their bets. In the lobby, people
are checking in. In minutes they all will be engulfed
in a fire that will leave 96 people dead and more
than a hundred others burned and maimed. It is now
On the beach, a man walking his dog spots a dark
cloud seeping out of the 22-story resort. Inside,
a hotel executive sees smoke rolling up a stairwell;
he rushes to the lower level and finds fire raging
in the ballroom.
The fire feeds off the carpeting and wall covers
and races through the hollow spaces between the structural
and drop ceilings. Hidden from view, a deadly blanket
of flames and lethal gases begins to surround the
The gamblers see smoke crawling outside the large
pane windows and along the ceiling in an undulating,
almost life-like layer 6 inches thick. Still, the
roulette wheels continue to spin.
And then hell breaks loose. The ceiling blackens
and fire enters the room. Flames steal oxygen
from the air, leaving patrons to swallow superheated
smoke and gas. People literally explode as a
wave of intense heat, 1200 degrees hot, flashes
through the casino.
Others pound on windows and locked doors or
run for the exit to the lobby, only to be struck
by an inferno that forces them back into the
The hotel's air conditioner feeds the fire.
Clouds of smoke particles build up, then suddenly
ignite. The very air explodes.
Two men hurl a young woman through a window
and leap out behind her. Others jump through
a casino window 20 feet high. Once outside,
survivors find the pool gate locked and are
forced to climb over a barbed wire fence.
Guests trapped in higher floors throw themselves
from balconies. Others with more time or presence
of mind slide down bed sheets to safety. Some scale
the outside walls like mountain climbers and claw
their way 15 or more stories to the roof.
A helicopter charter pilot is the first on the scene.
He lifts people off the roof and sets them down on
the beach, where temporary hospitals are set up.
Eventually larger government helicopters move in.
They balance on the edge of the roof to keep their
rotors from slicing into the hotel's bulky air conditioning
People run out of the pool area, bloody from showering
glass. Two croupiers dash out of the hotel and jump
into the pool, their clothing smoldering.People die
in elevators jammed between floors.Outside, crowds are
forming as fire engines come screaming from all parts
of the island. Raymond Acosta, a federal judge who will
wind up hearing the case, is just one more helpless
bystander as the dense smoke, black as pitch, pours
out of the dying hotel and the screams continue and
the people die.
While the fire will
rage over six hours, all but two of the deaths will
have occurred during the first few minutes. The remains
of 91 people will be found in the casino, most lying
in two heaps near a small door and a row of floor-to-ceiling
windows, mere yards from the sea-blue swimming pool.
It is the most deadly fire on American soil in more
than 40 years.
New Year's Day, 1987: As the embers glow at the DuPont
Plaza, the legal system ignites, For perhaps more
than any other type of litigation, mass torts require
Wendell Gauthier, a Metairie, La., attorney who will
become the chairman of the plaintiffs' permanent committee,
first hears of the disaster on television.
"When I saw the fire my immediate reaction was
sympathy," recalls Gauthier. "Then I thought,
'Oh my God, I hope no one I know is in it.' Then I
thought, as any plaintiffs' lawyer worth his salt
would, 'I would like to be in on the action.'"
In Gauthier's case, it was more than a daydream.
Months earlier he had been the lead counsel on the
MGM Grand fire trial in Las Vegas.
"But I was hesitant," Gauthier says. "I
was in the middle of trying a major air crash and
didn't know if I'd have the time and energy."
THE TEAMS ASSEMBLE
The next day, Gauthier received
a call from an attorney in Puerto Rico—Luis
Colon Ramery—who had already signed up several
victims as clients. Ramery was the brother of a plastic
surgeon Gauthier had met during the MGM litigation.
Gauthier decided to take the case.
On Jan. 1, John Coale, a Washington, D.C., lawyer,
was on holiday in New York. Gauthier tracked him down.
Within hours, Coale was on a jet bound for Puerto
Rico. His job: to protect the evidence through court
motions and media attention.
"We took hell because he was on the scene so
quickly," says Gauthier. "There was a lot
of animosity from local attorneys. They felt they
were being invaded and that we had designs on capturing
all the litigation. That wasn't true. We knew we'd
need good, local attorneys."
Meanwhile, Minneapolis attorney Gary Gordon was resting
from New Year's Eve when the phone rang. It was the
hotel's general counsel asking if Gordon's firm would
represent his client. By that afternoon Gordon and
his team were on a plane.
"It was utter chaos when we arrived," Gordon
says. "Bodies were strewn around. State and federal
people were all over trying to get a piece of the
action. There was tremendous bad blood between labor
and management; witnesses were threatened, bomb threats
were made—the hotel owner was despondent. The
first thing we did was fence off the site and set
up controlled access points.
"In a situation like this you have to work with
government investigators. You must be cooperative,
but at the same time try to keep them from being bulls
in a china shop.
"The next thing we did was find a high-quality
local firm to work with. Language was a harrier for
us but not for local attorneys. And we needed people
with a knowledge of the local courts and laws. We
also set up a field office to act as liaison and representative
on the island."
Access to the disaster location is a crucial issue
because the physical evidence is vital.
In the early days following a mass tort, plaintiffs'
attorneys will ask the courts to order the defendant
who is in control of the area not to disturb the evidence
and to let the plaintiffs' investigators onto the
There are two problems. First, the plethora of plaintiffs
often means that a united front is slow in developing.
Less experienced attorneys may be unfamiliar with
the measures needed to obtain a freeze on the evidence.
Second, defendants are in a hurry to start cleaning
up the disaster site.
"After the MGM fire, 200 workers with bulldozers
were waiting to move in," recalls Gauthier. "The
judge didn't want to sign a motion to stay the demolition
because MGM would have been closed too long. We were
able to convince the defendant that the judge was
going to allow our motion, so they agreed to halt
the bulldozers until we had time to investigate.
"It's critical when making a motion like this
to use the magic words, '... defendants be restrained
from cleaning any debris or altering the fire scene
in any manner.' "
Soon after the Kansas City
Hyatt Regency Hotel skywalk collapse in 1981 in which
more than a hundred people died, the hotel shipped
out debris (and evidence) in the dead of night, locking
away the remains in storehouses on the edge of town.
"The importance of gaining access to the site
of a mass disaster as soon as possible cannot be overstated,"
says Gauthier. "At least one suit should be filed
right away to provide a vehicle for judicial intervention
to allow plaintiffs' counsel access to the site. Then
an order by the court to prohibit any clean up should
"The bar is prohibited from soliciting plaintiffs.
In mass disasters, this is foolish. It severely hampers
the plaintiffs' cases because it is most important
to file a suit to protect evidence right away. And
unless the injured can be solicited by attorneys,
most will not have lawyers right away to do this work."
Gaining access to a disaster site is perhaps as much
a marketing effort as it is a legal one. Hotels, airline
companies and other defendants are very concerned
about their public image after a disaster. By talking
to the press, plaintiffs' attorneys can play up the
need to preserve evidence. It then looks bad if the
defendants are unwilling to cooperate.
"As the defendant's attorneys, we are caught
between a rock and a hard place," says Gordon.
"The public has a right to know what went on
and the press has a job to do. But there's the attorney-client
privilege and the sensitivity of the situation. So
part of our job is to help our client deal with the
While the media battle went on in the early days
of the DuPont fire, the defendant was filing an informative
motion. [t notified the court that the defendant was
represented and asked that no ex parte relief be granted
to any plaintiff.
Attorneys representing the injured and dead also
filed several motions in federal district court on
Jan. 2. They sought damages and an order granting
plaintiffs' investigators access to the hotel. The
motions were denied.
Likewise, on Jan. 7, a motion seeking a temporary
restraining order to force the hotel to close and
allow private investigators to enter the hotel was
"The plaintiffs' motions were denied because
the hotel is private property," says U.S. District
Judge Acosta. "Also, I did not want any evidence
removed before I had time to appoint a temporary plaintiffs'
committee. I wanted to give the parties time to get
together and work out an agreement as to how to proceed.
I did tell the defendant to secure the site of the
In the second week after the fire a plaintiffs' committee
was appointed. Both sides were then able to draft
a stipulation, with court approval, that allowed the
committee, its investigators and photographers onto
the scene of the fire. A motion was then granted,
allowing the committee to examine government-collected
samples of the victims' blood and lung tissue.
"The samples are critical," says Gauthier.
"They will tell us how the fire developed and
what these people died of. All our evidence, including
documents and depositions, will be entered into computerized
data bases for quick recall."
THE BIG STIP
The stipulation, "The Big Stip,"
stated that the plaintiffs' investigative teams would
be allowed in the hotel for five consecutive days
and detailed the investigation plan. The committee
agreed not to remove any evidence without the defendant's
permission, which would not be "withheld unreasonably,"
and that any evidence so removed would be placed in
a joint storage area, access to which requires two
keys one held by each side.
"We agreed to this stipulation because we were
dead certain that the court would allow it, and we
wanted to negotiate our own terms," points out
In a second stipulation, "The Little Stip,"
the hotel promised not to remove guest luggage arid
clothing until the committee had time to videotape
every room in its original post-fire condition.
"The purpose of taping is to follow the trail
of smoke to find the fire's cause and course of travel,"
While these stipulations were being worked out, the
committee was gathering information on the hotel's
"We discovered a big problem," says Gauthier.
"The hotel only has $1 million in insurance.
So we had to find other assets, such as equity in
the hotel itself. Its appraised value after the fire
was about $40 million.
"We had to keep the property from being further
encumbered by the owners. So we filed a lis pendens
and asked for a restraining order to keep the owners
from further mortgaging the hotel.
"The judge postponed a ruling and told us to
negotiate. The defendant's attorneys agreed there
would be no encumbrances. Now, that doesn't bind the
corporation, but I know that the attorney who made
the promise is an up-front person. So we felt comfortable
with his promise."
Such agreements are facilitated by the fact that
mass tort attorneys know one another personally or
by reputation. "There is always friction, don't
misunderstand," says Gordon. "But it helps
us agree to many things."
The reputation of certain mass tort attorneys also
makes the federal judge's job in appointing a plaintiffs'
steering committee easier. The steering committee
is just one of the recommendations made by the Manual
for Complex Litigation (MCL), "the bible,"
as Acosta calls it. The MCL is a handbook on federal
court procedures for mass tort litigation.
"The courts have found that it is more efficient
to have such a large case as DuPont handled by one
judge in one jurisdiction using one discovery process,"
notes Gordon. "Clients benefit by having lots
of money pooled to investigate and litigate properly.
They also benefit by having very knowledgeable lawyers
on the plaintiffs' committees."
The job of the interim plaintiffs' steering committees,
to be replaced in the ninth week after the fire by
a permanent committee, is to act as fiduciary for
all the plaintiffs in federal court.
Its duties include conducting discovery, reporting
on progess to all the plaintiffs' counsel, acting
as spokesperson at pretrial and motion hearings, responding
to court inquiries, preparing a trial plan, exploring
trial alternatives and, subject to court approval,
entering into stipulations with defendants.
"The court cannot deal with all the plaintiffs'
attorneys; there will be about 200 at the peak of
this case," says Gauthier. "This is one
reason why a plaintiffs' committee is formed."
To pay for the committee and its work, the court
in DuPont assessed each plaintiffs' attorney $800
for every death claim they represented and $300 for
each injury claim. In addition, every committee member
put up $50,000 "This takes care of our immediate
fiscal needs," says Gauthier. "Later we
will build up rapport with a bank, which will lend
us money to continue with the case, using any future
settlement or judgment as collateral."
Two of the early jobs of both the committee and the
defendant's attorneys are to locate and interview
witnesses, and to hire experts to investigate the
site of the disaster.
Government and quasi-governmental investigators,
such as those from the Bureau of Alcohol, Tobacco
and Firearms, as well as the National Fire Protection
Association, were at the DuPont Plaza almost immediately
after the fire. But they did not tag and document
evidence, nor were they necessarily looking for the
same things as attorneys.
The defendant's attorney had experts on the scene
soon after the fire. It was not until the third week
that plaintiffs' attorneys and their experts had access
to the hotel site. There were five plaintiffs' investigative
teams, each consisting of five experts, one attorney
and one photographer.
"We had one of our experts, photographers and
attorneys with each plaintiff's team," notes
Gordon. "We felt this was important because we
wanted to memorialize everything to make sure they
didn't interfere with the evidence. They didn't ask
to do this on our teams, though."
"Once we had our experts and were into the investigation,
it was a very tense time," notes Gauthier. "There
were several near fist fights between attorneys and
experts from both sides.
"For example, they removed a box of blueprints
to an office. When we asked to see what they had removed
they said they didn't have the key to the office.
We said we'd tape the office shut and kick the door
in the next day. There was a shoving match. But they
came up with the key. This kind of thing is common."
The administration of the DuPont case is a monumental
"A case like this comes to a judge once in a
lifetime, if at all," Acosta says. "For
me, it's like flying a Cessna all your life, then
suddenly being asked to fly a 747. But it's not the
legal issues that pose the problem; it's the logistics.
"It's a nightmare trying to keep up with everything
the parties are doing, the evidence, the discovery,
the jurisdictional issues, third-party actions, who
are the proper party defendants and all the rest.
There are millions of documents. I deal with it by
referring to the MCL. I have a magistrate ruling on
discovery. And I try to anticipate what's coming down
What has come down the road during the several months
after the fire is collating, coordinating and studying
information. There have been discovery requests, petitions
for multi-district handling, motions on procedures
and motions to sequester insurance funds.
So far, 46 complaints have been filed in federal
court, by more than 400 plaintiffs. Some claim more
than $500 million in damages. Fourteen defendants
have been named.
Despite all the trial preparations, attorneys from
both sides agree that the DuPont case, like most mass
tort cases, will probably be settled.
A fire took place at the start of the year. Almost
a hundred people died in ways that few of us can begin
to imagine. Soon, perhaps within the next year or
so, the DuPont Plaza will reopen. Gamblers will once
again be pumping the slots: vacationers lounging by
the sea-blue swimming pool, and guests sipping coladas.
All will be back to normal.
And there will be very little to remind anyone of
what happened on New Year's Eve 1986.