With the January 2 trial date fast approaching, today’s case management conference before Judge Dylina lasted most of the day.

Punitive Damages Claim Won’t Be Split Off

PG&E asked the court to split off the issue of whether PG&E should pay punitive damages and save that issue for a second trial later next year. The judge denied PG&E’s request. He agreed with the plaintiffs’ lawyers that the issue of punitive damages should be presented along with all the other issues involved in the case to the jury that is empaneled in January. Nothing should be carved out from that trial and reserved for later.

Should the Judge Speak Personally to PG&E’s CEO about Settling the Cases?

The judge noted that PG&E’s chairman of the board, Tony Earley, has stated publicly that it is PG&E’s desire to settle the cases before trial. Yet, settlement discussions seem to have stalled. The judge noted that PG&E has not been complying with his order that requires PG&E to make a response to any plaintiff’s settlement demand 5 days before the settlement conference takes place. Instead, PG&E seems to be waiting until the day of the settlement conference to state its settlement position. Eighty percent of the cases remain unsettled.

The Settlement Judges have reported back to him that they are experiencing some frustration with the process. The judge is considering inviting Mr. Earley to appear in court, so that he can hear first-hand the judge’s thoughts on the importance of the cases and the seriousness of the punitive damages claims against PG&E. PG&E’s lawyers objected to Mr. Earley appearing in court, saying that they have already explained things to the CEO. The judge is going to mull over whether he will ask Mr. Earley to appear in court.

Too Many Motions in Limine

The judge will hear arguments on December 21 concerning what evidence should be kept out of the January trial. Hearings on such arguments are routine before every trial. In this case, however, thousands of pages of briefs have been filed. The volume of the briefing is overwhelming as, according to the judge, perhaps unnecessary. The lawyers are to meet and attempt to trim down the issues to be argued on December 21.

Lawyers Return to Court

Next Case Management Conference: December 11.

Today Judge Dylina denied PG&E’s request to throw out of court the victims’ claims for punitive damages.  Instead, he is leaving  the question of whether PG&E should pay punitive damages to the jury. 

PG&E argued that the punitive damages issue was getting in the way of settlement negotiations. PG&E says it has done nothing deserving of punishment.  (Of course, lawyers for the victims disagree.) Throw out of court the victims’ claims for punitive damages now, PG&E argued, and the victims might well view PG&E’s settlement offers as being more attractive than they have to date.

The judge agreed that a ruling on the punitive damages issue might help the parties get more realistic in their settlement discussions. But instead of telling plaintiffs that he was throwing their claims out, he told PG&E that he was leaving them in. The judge ruled that it’s up to the jury to decide whether PG&E’s conduct — in particular its failure to test and replace segment 180 — shows that PG&E "consciously disregarded" the safety of the public.  If the jury decides that it does, then it would be justified in assessing punitive damages.

Let’s see if PG&E gets the message. 

Other news from the two-day hearing:

  • Yesterday the judge threw out PG&E’s claim that the victims were somehow responsible for the fire.  He found that there simply was no evidence to support it. PG&E will not be allowed to blame the victims at trial.
  • The judge ruled that PG&E’s installation of the faulty gas line constituted a “taking” of plaintiffs’ property. This ruling clears the way for at least certain plaintiffs to recover against PG&E for the diminution in the market value of their property that PG&E’s conduct caused.
  • PG&E has asked the court to “bifurcate” the issue of punitive damages.  That is, PG&E has asked that a trial first be held on the issue of how much money should be awarded to compensate the victims for their actual losses.  Then, once all the victims’ cases have been tried by that jury, a second jury be empaneled to decide the issue of punitive damages.  The judge set November 20 as the date to hear arguments on that request.  But the judge made it clear that he was unlikely to "bifurcate" the trial in this fashion, as he had already considered and rejected this idea at the outset of the case.

 

More than 100 federal lawsuits have been filed across the country as a result of consumers being killed or injured by the side-effects of the anti-coagulant Pradaxa, manufactured by the German company Boehringer Ingelheim. AJ De Bartolomeo

Those suits have now been consolidated in a "Multi-District Litigation" proceeding, and they have all been sent to a judge in East Saint Louis, Illinois, for handling.  That judge, the Honorable David Herndon, is the same judge who is overseeing the thousands of cases filed by those injured by Yaz and Yasmin birth control pills.

The judge has appointed Pradaxa lawyer A.J. De Bartolomeo of Girard Gibbs in San Francisco to the plaintiffs’ steering committee.  She will be responsible for helping direct the efforts of all the lawyers working on the case for the various Pradaxa plaintiffs.  She currently serves on the Yaz Plaintiffs’ Steering Committee as well.

Judge Dylina has postponed argument on whether the victims’ claims for punitive damages against PG&E should be thrown out of court.  Arguments will now be heard on October 29 instead of October 15.

The judge also postponed to December 21 arguments on what evidence, if any, will be excluded from trial.

The trial date of January 2 remains unchanged.

Two years ago Chris Chandler was killed by a southbound motorist as he tried to cross El Camino at Isabella in Atherton.  After investigating the design of the crosswalk, we filed suit against Caltrans on behalf of Chris’ family.  We’ve been arguing in court that the crosswalk is dangerous and that Caltrans should either fix it or remove it before someone else is killed or injured.  We’ve now been litigating the case for a year and half.  But Caltrans denies that there is any problem with its crosswalk, and refuses to do anything to make the intersection safe. We’re waiting for the court to give us a trial date. Maybe Caltrans will listen to a jury.

This past Sunday, two years to the day that Chris was killed, two pedestrians were struck by a southbound SUV as they tried to cross El Camino at the same intersection in the same crosswalk. Both were seriously injured.

What will it take before Caltrans gets it? Isabella and El Camino Caltrans has known for years that marked crosswalks like the one at Isabella and El Camino are more dangerous than crosswalks with no markings at all. It’s Caltrans job to make its roadways relatively safe for pedestrians. Yet, it does nothing to fix the dangerous situation it created.

El Camino is busy.  More than 20,000 vehicles per day pass through the intersection at Isabella. If Caltrans is going to paint a crosswalk there, it needs to install devices to warn and slow traffic, or install raised islands in the middle of the roadway where pedestrians can take refuge, or both.  Simply painting lines in the road and hoping for the best is inviting disaster. Such a crosswalk  provides a false sense of security for pedestrians, inviting them to cross in an area where it is unsafe to do so.

That’s been proven in study after study.  Here’s just one study by the US Department of Transportation, published in 2005.  It concludes that, for busy roads such as El Camino at Isabella:

Having a marked crosswalk alone (without other substantial improvements) was associated with a higher pedestrian crash rate (after controlling for other site factors) compared to an unmarked crosswalk.  Raised medians provided significantly lower pedestrian crash rates on multilane roads, compared to roads with no raised median.”

 

Study – Safety Effects of Marked Versus Unmarked – 2005

PG&E’s new $10 million media campaign features Tony Earley, PG&E’s CEO, saying that in recent years, PG&E had "lost its way." (Cue the music and the video of cute little kids.)

That, I suppose, is what passes among PG&E’s top management as an apology.

Seems that Earley forgot to run his sound bite by PG&E’s lawyers.  After all, it’s the lawyers who run the show at PG&E and they seem to disagree with this "we lost our way" nonsense.

According to Jaxon Van Derbeken at the Chronicle, at this week’s hearings, CPUC staff accused that

PG&E’s pipeline integrity management program, record keeping and emergency response the night of the blast violated the law. In particular, the PG&E Lawyer Joseph Malkincompany was accused by regulators of failing to test the San Bruno line in recent years even after it twice boosted gas pressures above legal levels."

In response, rather than repeating Earley’s "we lost our way" mantra, PG&E’s lawyer denied everything.  The lawyer, Joseph Malkin (pictured) claimed that PG&E’s practice of spiking the pressure in its gas lines was legal, that it posed no danger to the pipeline and that it had nothing to do with the blast.

According to Van Derbeken, PG&E’s lawyer said that

PG&E’s only responsibility in the blast was unwittingly installing and operating a defective pipe [in 1956]."  

Far cry from Earley’s "we lost our way" stuff. 

 May a pet owner recover for emotional distress when another intentionally injures his pet?  It depends.  While in other states pet owners may recover for emotional distress, up until last month California courts only allowed juries to award economic damages to a pet owner and refused to award an owner for his emotional distress including pain and suffering related to his pet’s physical injuries. But recently, the Court determined that an owner can recover under a theory of trespass.  

Under the law of trespass, dogs are considered personal property and trespass to personal property allows recovery for intentional interference of personal property causing injury including emotional distress.  In the recent case the jury awarded the dog owners about $2800 for the amount of the veterinarian bills and an additional $50,000 for emotional distress to the dog owners.  This decision stated:  “the affection of a master for his dog is a very real thing and . . . the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal.”

 

Atrial fibrillation is a type of irregular heartbeat that can cause blood clots, heart attacks and strokes. For years, doctors have prescribed blood-thinners like Coumadin, also known as warfarin, to those who suffer from atrial fibrillation. The blood thinners prevent the clots from forming, and so prevent the heart attacks and strokes.

A few years ago a new drug came on the market, Pradaxa. Manufactured and marketed by Boehringer Ingelheim, a German company, Pradaxa has been a huge money maker, accounting for $1 billion in sales in 2011 alone.

Like Coumadin or warfarin, Pradaxa works to prevent strokes and heart attacks, though at least one study found that Pradaxa isn’t as good as Coumadin. Only problem is that if someone taking the drug starts to bleed, the bleeding can’t be stopped. Unlike warfarin or Coumadin, there is no antidote (called “reversing agent”) to stop the drug’s blood-thinning effects. A patient who cuts himself or, perhaps falls and begins to bleed internally, may get himself to the hospital, but there often is nothing the doctors can do except make the patient comfortable as he bleeds to death in the ER. 

Pradaxa supporters agree that an antidote would be “desirable.” But as one researcher noted, “when prescribing a drug with side effects that include life–threatening hemorrhage, reversal is not ‘desirable,’ it is essential.”

  • Generic name: dabigatran
  • Manufacturer: Boehringer Ingelheim
  • Sales: Approximately $1 Billion per year
  • Side Effect: Fatal Hemorrhage

 

 

 

Hundreds of PG&E’s victims still haven’t been compensated for what they’ve been through.  PG&E admits it caused the explosion, but it still hasn’t settled their claims. 

Once the lawsuits started, some thought PG&E would want to “settle quick.”  Those folks were wrong. The fact of the matter is that PG&E has paid settlements on very few cases – perhaps one out of ten. 

What about the hundreds of cases that PG&E won’t settle? The victims are supposed to be able to take PG&E to trial and have a jury decide. That’s why, after all, we have courthouses. But for the people of San Bruno, getting to trial has been a struggle.

There was going to be a trial this past July.  The trial was going to include only a very small number of the families who were affected by the explosion.  The hope was that after the jury rendered its verdicts for a few of the families, PG&E would see the writing on the wall and settle the remaining cases.  Additional trials might not be necessary.   

Unfortunately, that first  trial was postponed.  Then it was postponed again. And again.  Now it won’t start until January, 2013.    

Some frequently asked questions:

Who are the families who will be included in the first trial set for January?

As of now, the families are:

  • Locon
  • Ruigomez
  • Tafralis
  • Vasquez
  • Barr
  • Healy
  • O’Neill
  • Kim
  • Magoolaghan
  • Chea

How did those particular families get picked?

Months ago, the judge allowed PG&E to pick some families, and then allowed the plaintiffs’ attorneys to pick some.  Then, just before one of the previous trial dates, PG&E decided it didn’t like some of the cases it had picked.  The judge dropped those families from the list and stuck others in their place.  That’s one of the reasons why the current list looks different from the one here.

Can PG&E still decide to pay settlements?

Sure.  PG&E can decide to pay anytime.  But people with experience dealing with PG&E aren’t holding their breath. Instead, they are counting on trial. It’s just a question of when that trial will happen. 

Many victims still struggle with post traumatic stress.  Some have lost their jobs. Why is PG&E spending $10 million on public relations when they still haven’t compensated these folks? 

Watch what PG&E spokesman Joe Molica says and decide for yourself.

 

 

 

Trial was set to begin October 9. But because an important witness became ill and could not attend his deposition, everyone expected that the date would have to slip a couple of weeks.

But today, Judge Dylina ruled that trial will not begin until January 2, 2013. That’s a disappointment for the plaintiffs, who had originally been told that trial would begin July 2. Then July 23. Then, they were told they would need to wait until October 9 for their day in court. Now, it’s next year.

The judge cited a number of reasons for pushing the trial out to next year, including the budget crisis that is affecting the courts generally.

The new schedule:

  • Argument on whether plaintiffs’ punitive damages claims should be thrown out: October 15
  • Arguments on what evidence, if any, should be excluded from trial: November 30
  • Trial to begin with lawyers only: January 2
  • Jury selection to start: January 3
  • Opening statements to start: January 14