California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

Most victims of the Glenview explosion can't afford to pay attorneys an hourly rate to investigate the cause of the accident or to take a potential lawsuit to trial.  For these people, the doors of the courthouse would be essentially closed were it not for the contingency fee agreement.  The contingency fee agreement places the victim on a level playing field with PG&E and any others who may responsible for the explosion.  Under a contingency fee agreement, the client pays nothing to the attorney for his work unless the attorney obtains for the client monetary compensation.  All consultations with the attorney are free. The contingency fee agreement allows any victim access to the legal system, regardless of the victim's financial circumstances.

Selecting an Attorney

Corporations such as PG&E seldom pay a fair settlement to a victim with an attorney who has not proven he can win against them at trial. The lack of a trial record is a weakness that a corporation such as PG&E or its insurance company will always exploit. Ask the attorney you are considering what results he has obtained for his clients against PG&E in cases like this.

Next, ask the the attorney if they are prepared to fund the case.  Can the attorney afford to invest up to a million dollars for such costs as expert fees?  Has he or she ever done so in the past? Or is the attorney likely to fold as trial approaches because he has run out of money or can’t afford to risk his “investment” at trial?  

Your rights as a client

You have a right to be represented by the lawyer of your choosing, one with a proven track record against PG&E.  You have a right to negotiate the terms of your agreement with your attorney.  You have a right to fire your lawyer at any time for any reason.   The State Bar of California provides more helpful tips here.

Finding a Lawyer

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“Second Impact Syndrome” refers to mild brain injuries suffered repeatedly within a short period (hours, days, or weeks). Although all brain injuries are serious, second impacts can be catastrophic or even fatal. The American Academy of Neurology has developed guidelines  for deciding when it is safe to return to play after a first injury. The Academy recommends that, to reduce the risk of the second impact syndrome, an athlete who suffers a head injury resulting in temporary confusion, amnesia, or other alteration of mental status should not return to play until examined by a health-care provider familiar with these guidelines. Sport oversight committees such as California Interscholastic Federation, have begun to adopt these recommendations.

The guidelines rely in part on self-reporting by student athletes or close observation by coaches and other players. Unfortunately, athletes are often reluctant to admit their injury. To prevent their child athlete from suffering a second impact catastrophe, parents should do the following:

• Know and recognize the symptoms of a brain injury. As described here.
• Learn what the coaches know about brain injuries.
• Find out whether the school has policy for handling brain injuries.
• Educate your child about the catastrophic risks of a second impact and
• Emphasize to your child the danger of hiding even the seemingly minor symptoms of brain injury.
  

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NBC in San Francisco interviewed me in July 2009 about PG&E's underground systems. I warned then that PG&E's whole underground infrastructure was collapsing and that, unless PG&E did something right away, people would be hurt.

They're just time bombs under the street and PG&E has done nothing, nothing that makes a difference, to stop them from exploding.

I urged PG&E to begin monitoring its systems in some meaningful way.  But PG&E just didn't do anything.

When another accident happens, well perhaps they'll say 'We feel bad' . . .[but] they should be doing something right now before someone gets hurt or killed.

That interview was 14 months ago. After it aired, PG&E spent almost $50 million pushing prop 16 in a failed attempt to protect its monopoly.  Perhaps it would have been better if PG&E spent some of that money on safety. The San Bruno gas explosion might have been avoided.

The video is no longer on the internet. But you can read the transcript of the piece, "PG&E's Aging Underground Problem," here. 

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Many of the San Bruno residents evacuated on September 9th may be categorized as “survivors,” having escaped the Glenview fire without being burned.  But even though they suffer no physical injuries, the gas explosion will leave dozens with emotional injuries that will persist for a long time to come.

Generally the law does not require a wrongdoer to compensate the victim for the emotional distress it has caused a victim unless it has also caused the victim to suffer some sort of physical injury.  And certainly PG&E will argue that the general rule should apply here -- that unless a victim suffered physical injury, PG&E shouldn't be required to compensate him for any emotional injury that it may have inflicted.

But in a special situation like this one, everyone who suffered serious emotional injuries should be entitled to compensation, regardless of whether they suffered any physical injuries.   That's because PG&E knew that if its negligence led to a gas line explosion, people would fear for their lives and for those of their loved ones.   PG&E's behavior was morally wrong and the laws are designed to hold wrongdoers accountable for all the harm they cause, even if that harm is "only" emotional distress.

Seeking compensation for emotional distress (or "post traumatic stress disorder") does not mean you are weak or can't handle a stressful situation. Nor does it mean you are piling on or taking advantage of the system.   People who suffer from emotional distress suffer real losses.   Often because they can't concentrate, they lose their jobs or do poorly in school.  Their family situations may deteriorate because they begin to snap at those they love.  They suffer from anxiety – feel constantly "on edge" -- and that can lead to depression.  

Lawyers experienced in PG&E explosion cases can assist the San Bruno residents who are suffering emotionally from this haunting catastrophe.

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What is the biggest challenge facing doctors in the first days after a burn injury?  Fluid loss.  

When a victim suffers severe burns, much of his skin may be gone and to put it very simply, his capillaries begin to leak. Instead of sticking together, keeping blood inside of the vessel, the tissue cells separate and become very porous. Huge amounts of fluid pour out into the tissue. In small burns this fluid accumulates only in the burned areas but in very large burns fluid can accumulate everywhere in the body. A burn patient can develop a significant amount of swelling at the expense of blood flow. The blood volume goes down as the patient becomes more swollen.  Because his heart is unable to pump enough blood to the body, he develops shock.  This shock may cause other organs to stop working.  Doctors will combat these effects by providing the patient with fluids, electrolytes, antibiotics, pain medication, tetanus vaccination and often by inserting a catheter.  The catheter is needed to measure urine output and monitor fluid levels. 

Also, with the infusion of fluids the doctors must constantly monitor the patient’s circulation in his arms and legs.  A condition called compartment syndrome can arise in a burn patient when

• stiff scars wrap around the limb and the tissue in that limb causing fluid loss; and/or,
• swelling results from all the fluid administered to combat the losses fluid in the blood vessels and tissues. 

Compartment syndrome can even occur in the chest/abdomen if the patient’s trunk is badly burned and the skin cannot handle the swelling.  When necessary doctors will relieve the compartment syndrome by performing an escharotomy or fasciotomy. 

Approximately 50% of all deaths that occur within first 10 days following burn injury are due to inadequate fluid resuscitation necessitated by the burn. 

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PG&E warned its shareholders that deficiencies in its leak detection procedures could result in a major catastrophe.  It further warned that the economic cost of the catastrophe could jeopardize the utility's financial condition. But it didn't warn its customers.

According to its 2009 Annual Report, PG&E reviewed its own gas leak survey practices in 2008 and found that "improvements needed to be made." 

It further acknowledged that its practices were under investigation by outside agencies and that, in the event of a "hazard or liability" (corporate speak for "explosion"),

the Utility's insurance may not be sufficient or effective to provide recovery.

Neither PG&E nor its shareholders can say the situation leading to the San Bruno explosion caught them by surprise.

Not so for the people of San Bruno.

Thanks to a reader for sending this along.

PG&E 2009 Annual Report (pdf 124 pages)

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TV reporter Jean Elle interviewed me in my office, noting that the San Bruno blast is "eerily similar" to the Santa Rosa explosion and fire that I handled some years ago.  She then put some hard questions to PG&E and got nothing back but double-talk.

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Political leaders are calling for PG&E to install on its gas lines automatic shut-off valves to prevent or mitigate future gas line disasters. 

Sounds like a good idea. Here's an interesting snippet from a report of the NTSB, the agency that is investigating the San Bruno gas explosion:

The Safety Board believes that had an EFV been installed . . .  the valve would have promptly closed . . . . This closure would have likely prevented the release of gas sufficient to form an explosive mixture . . .. Additionally, an EFV would have prevented the continued release of gas during the emergency response activities and endangerment to firefighters and other emergency personnel.

The NTSB's recommendation makes good sense.  What's most interesting, however. is that the NTSB's recommendation wasn't issued as a result of the San Bruno Fire.  Rather, it was issued after the Santa Rosa fire.  In 1992.  

Why hasn't NTSB's recommendation been implemented in the 18 years since the last fatal gas explosion?

As I wrote here, the NTSB has no power to require PG&E to do anything.  It can only recommend.  And, of course, PG&E is free to ignore those recommendations. 

Santa Rosa Gas Explosion Safety Recommendation

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The google map below shows the spot where the pipeline exploded.  It also shows the asphalt patches placed on the street surface by a San Francisco firm (D'Arcy and Harty) after it completed sewer work in May 2008.

Before a contractor digs in the street, PG&E is supposed to mark on the street with spray paint the location of its gas lines so that the contractor can avoid them. Interestingly, those paint marks aren't visible. Maybe they were worn away, or perhaps the contractor just paved over them after it finished the work.  Maybe the photo just isn't of high enough resolution.  But certainly the situation brings back memories of the last underground gas explosion in the bay area --  the one on Spencer Avenue in Santa Rosa.

In the Santa Rosa explosion, PG&E failed to properly mark the location of its gas line. A contractor hit the line with a backhoe and damaged it. The line leaked months later. Residents smelled gas in the days leading to the blast, but nothing was done to find or repair the leak.  

One thing might be different here.  The contractor may have damaged the gas line not with a backhoe, as in Santa Rosa, but with the vibration resulting from its unique method of sewer line replacement.  According to the San Jose Mercury News: 

To avoid the disruption of digging trenches in the street, the contractor used a method called "pipe bursting." Crews pulled a large, cone-shaped device through the aging, 6-inch sewer pipes, shattering them, and replaced them by pulling a new, 10-inch, polyethylene sewer pipe in behind them. The technique can cause ground shaking and disruption of adjacent soil and rock.

Local residents report that there was certainly lots of shaking and pounding in connection with the D'Arcy and Harty project.

Of course, to a large extent, how the damage to the gas line was done isn't nearly as relevant as why PG&E didn't find and fix it.

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Insurance companies are businesses.  Their goal is to increase profits.  Sometimes they view settling an insurance claim with the victim of a disaster as a business negotiation.  Following a disaster, homeowners may face the following problems:

• Not having enough insurance to cover their losses (also known as “underinsurance”.)
• Delays in getting responses to phone calls, letters or other inquiries.
• Confusion over what’s covered and what’s not
• “Lowball” estimates and settlement offers
• "Hardball" negotiating tactics by insurance company employees

Not every victim encounters all of these problems.   Many claims go relatively smoothly and the process works as it is supposed to. But every large loss insurance claim is time-consuming.  In California the insurers must comply with “Fair Claim Handling Regulations”, and other laws that tell insurers what they must, can, and cannot do. These laws are in an “Insurance Code” (a fancy name for the book of laws governing insurance). There are also laws in published decisions by Judges. Judicial decisions create laws, in addition to the “code” laws and regulations. Insurance companies are supposed to comply with all three: regulations, statutory law, and case law.

The California’s Fair Claim Handling Regulations are very useful and provide specific rules relating to--

• Deadlines for responding to letters and phone calls 
• Deadlines for proofs of loss
• What information your insurance company must give you

You can read and print out these regulations and laws here at the California Department of Insurance website.

Remember:  your insurance adjuster may be friendly -- but he is not your friend.  He is a businessman.  If you feel you need to level the playing field, you should contact a lawyer.  Many victims are concerned that if they consult a lawyer the insurance company won't talk to them.  Your insurance company has a legal duty to process your claim.  That duty persists even if you have a lawyer helping you and even after you sue them.  Sure, the adjuster may be reluctant to speak with you if you've retained a lawyer. But if you want to maintain communication with your insurer and your lawyer agrees, she can notify your insurer that they're permitted to continue talking with you directly.

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Questions and answers about the NTSB's role in investigating the PG&E gas explosion and fire in San Bruno:

Why is the National Transportation Safety Board investigating?

Pipelines are considered modes of transportation because a product (natural gas) travels through them.  Therefore, the NTSB investigates pipeline accidents that involve a fatality. 

Will the NTSB hold the wrongdoer accountable?

No.  The NTSB has no power to punish or fine anyone, or to hold anyone accountable.  In fact, the NTSB has no enforcement power at all.  Furthermore, its conclusion about who was at fault for the explosion will be inadmissible in any subsequent lawsuit or other legal proceeding. 

If the NTSB has no power to hold wrongdoers accountable, and its conclusions are inadmissible, then what's the point?

The only reason the NTSB exists is to study accidents and make safety recommendations like this one.  The hope is that industry will adopt the recommendation and that future accidents will thereby be avoided.  But the NTSB cannot require anyone to implement the recommendations.  It can only make the suggestion.

How reliable are the NTSB's conclusions about the cause of an accident?

Unfortunately, they are not reliable at all. Generally, the full facts about the cause of an accident come out only during the litigation process.

I write here about the problems with the NTSB's findings in the context of the NTSB's specialty, aviation accidents. The NTSB's findings are not any better in the pipeline context.   For example, here is the NTSB's report concerning the fatal PG&E gas explosion in Santa Rosa. The NTSB cleared PG&E, blaming a contractor for striking and damaging an underground gas line that later leaked and caused an explosion and fire.  Five years later a jury came to a different conclusion.  It held PG&E liable for the deaths for failing to properly mark on the street the location of the gas line so that the contractor could avoid striking it in the first place.

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Hearing about the San Bruno explosion brought back memories of another PG&E explosion that killed two, injured three others, and destroyed an apartment building in Santa Rosa.  In fact, the Wall Street Journal even mentioned that explosion in its article discussing the San Bruno blaze.

I spent 4 years prosecuting the case against PG&E on behalf of the families of those killed. Some of the lessons I learned from that case seem applicable here:

• Gas leaking from the street will follow the path of least resistance. The path is typically through the airspace that exists around the pipes that lead into or under the nearby houses.
• Natural gas has no odor. PG&E adds to the gas an odorant (called mercaptan) before distributing it. The sole purpose of the odorant is to help in detection of leaks.
• The odorant is stripped from the gas when the gas passes through or along dirt. That means the odorant is effective of alerting people of a leak from an appliance such as a stove, but is much less effective at alerting people of a leak from the street.

If even one person reports to PG&E the smell of gas, or rotten eggs, or a smell like rotten food -- however faint -- PG&E must chase it down.  If the smell cannot be traced to an appliance, it's potentially big trouble. A faint smell of gas can mean either a very small leak from an appliance or a huge leak that has passed through soil, been stripped of its odorant, and is permeating the neighborhood homes. 

In any case, locating and controlling leaks is PG&E's responsibility.

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The California Bar's Chief Lawyer is warning victims of the San Bruno explosion about unethical lawyers, and about the best way to select an attorney.  The full text of the warning letter is set forth below.  The highlights:

• It is unethical and illegal for an attorney, or someone acting on the attorney's behalf, to contact a victim in person or by phone for the purpose of offering services unless the victim has asked to be contacted. Victims should not deal with attorneys who contact them in this fashion. (Contact by letter, as long as the letter says "advertisement," is allowed.)
• A victim should consult with several attorneys before selecting one to represent him or her.  The victim should not feel rushed to complete the selection process.  There is time.
• A victim should ask the attorney he is speaking to about the the attorney's "experience and background to handle the particular matter."

The last point is probably the most important.  Some useful questions to ask the attorney:

• Have you ever represented clients against PG&E?  How many times? 
• Did the cases involve wrongful death or burn injuries?
• Did the cases involve explosions of underground utilities?
• What was the result of those lawsuits?

The least useful question to ask is for an attorney's opinion of the value of the case.  Unethical attorneys will often offer an inflated opinion in an attempt to win the client over. 

I represented all the victims of the PG&E gas explosion in Santa Rosa except for one, who selected a different attorney.  That attorney, though a charming person, simply didn't have the experience necessary to handle the case, and ended up settling the young woman's case for much less than was appropriate.  The young woman later asked my firm to sue her former attorney for settling the case for less than was fair.  We proved that the lawyer, in convincing the woman to settle for the amount she did, committed malpractice.  But the attorney's own insurance was not sufficient to fully compensate the woman for the harm he caused her.  Needless to say, it would have been better had the young woman selected the right attorney at the outset.

San Bruno Explosion

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Underground gas lines can leak because of corrosion, because they were improperly installed, or because they were damaged by a contractor’s backhoe during a street repair project.

A leak may be PG&E’s fault.  Or it may not be.

But it's always PG&E's job to find leaks in its equipment.  It is supposed to do this in at least three ways:

1. By checking to be sure more gas is not being pumped through the system than going through the meters serving the houses;
2. By performing “leak surveys,” which entails driving through neighborhoods looking for dead vegetation -- one sign of a gas leak
3. By taking reports of "funny gas smells" from customers seriously.  Unfortunately, sometimes PG&E doesn't.  If a serviceman can't find a leak coming from an appliance, he may chalk the smell up to poor housekeeping.  Sadly, some PG&E engineers feel that not all gas leaks are dangerous enough to be treated as real emergencies.

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I've listened to PG&E engineers on the "gas side of the house" try to convince me that natural gas leaks are not really that dangerous. They have argued that you need more than just a leak to end up with a fire or explosion. 

First, they say, you need the proper mixture of gas and air. That mixture is 5 to 15% gas, and the rest air. If the gas content is less than that, the mixture is too lean to ignite. If it is more than that, it is too rich. To ignite, the mixture must be just right. 

Second, before a combustible mixture can explode it must come in contact with an ignition source. Say, for example, an open flame. 

Everything has to coincide just right, they say, for an explosion to occur.  So leaks shouldn't always be considered that dangerous.  Leaks are not always an emergency.

Some of what they say is true. But only to a point.

Yes, only a combustible mixture of natural gas and air can ignite. At the source of the leak, the "mixture" is almost 100% gas. That's too rich to combust. Far from the leak, the mixture is almost pure air. That's too lean. However, there is always an area between the source of the leak and the air far from the leak where the mixture will be just right.  And that combustible mixture will move as the leak continues and the gas cloud grows.

Sooner or later, the combustible mixture will encounter an ignition source. An open flame is not required. A car cranking over its engine, someone flipping on a light switch, or someone answering a cell phone is enough to trigger an explosion.

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A friend heard that PG&E was accepting responsibility for the San Bruno gas explosion. Wrong. They aren’t.  PG&E’s statement is cleverly worded to avoid accepting responsibility until the case against it is proven.  Read it carefully:

If it is ultimately determined that we were responsible for the cause of the incident, we will take accountability.

Once it is ultimately proven that PG&E is responsible, how could it not? 

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Red Cross Shelters:

• Veterans Memorial Recreation Center, 251 City Park Way at Crystal Springs Road, San Bruno
• San Bruno Senior Center, 1555 Crystal Springs Road, San Bruno
• Red Cross Receiving Center: Church of the Highlands, 1900 Monterey Drive, San Bruno

San Bruno Emergency Hotline: (650) 616-7180

Legal:

If you have been affected by the fire and would like to know your legal rights, call or email us or contact the San Francisco Mass Tort and Class Action Law Firm Girard Gibbs at 415.981.4800.

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Friday night lights. Marching bands. And the smacking of football pads. Yes, it’s football season!

As parents prepare to watch their kids on the football field, discussion returns to topics of injuries and helmet safety. The risk of football-related brain injurieses is undeniable. Each year designers and manufacturers unveil the latest and greatest helmet.  The new helmets can cost between $300 and $400. Does a more expensive high tech helmet make a difference?

Opinions vary.

Some medical experts say there are no conclusive studies that show one brand or style of helmet to be more effective at preventing concussions than another. "We just know that helmets in general don't protect against concussions," said Dr. Robert Cantu, who has been studying football-related head injuries since 1987. "We do know a newer helmet is better than an older one," he added.
While manufacturers such as Riddell claims that its Revolution helmet reduces the risk of concussion by 31 percent, and Xenith does not call its product a helmet, rather it boasts of an “adaptive head protection system of integrated technologies designed to reduce the sudden movement of the head by adapting to different energy levels."

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A study published in the September 2010 issue of Pediatrics reports the number of sports-related concussions is highest in high school-aged athletes, but the number in younger athletes is significant and rising. Visits to emergency departments for minor traumatic brain injuries occurring during organized team sports have increased dramatically over a 10-year period, and appear to be highest in ice hockey and football.

What should schools being doing to protect their students? For one thing, every coach can take the free online concussion training course offered by the Center for Disease Control. The course, which is designed for parents as well as coaches, includes video segments, quizzes and a resource center. It takes approximately 40 minutes to complete, but the time will vary because it’s interactive. The training dispels many of the “myths” about brain injuries that we’ve blogged about previously here and here.

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