San Bruno Gas Explosion

At 2:00 p.m. today, the lawyers will report to Judge Dylina that PG&E has agreed to settle all but two of the lawsuits brought against it by the victims of the PG&E explosion.  PG&E agreed to settle with 286 of its victims on Friday, September 6, and with the remaining 61 on September 9 — the third anniversary of the explosion.  The 59 clients we represent were the last to reach agreement with PG&E on Monday.  The amounts of the settlement are confidential, but PG&E told the Securities and Exchange Commission that it expects to record a charge of approximately $110 million in connection with the agreements.

Why did the cases settle?

PG&E finally agreed to pay amounts that made sense to its victims.

Why now?

Before PG&E would agree to compensate the victims, the victims had to prove to PG&E that they were willing to go all the way to trial. 

How did they prove they were willing to go to trial?

For three years, the victims put up with PG&E’s prodding, poking and questioning.  They agreed to undergo the mental exams that PG&E insisted upon.  They tolerated PG&E calling them fakers and whiners.  They stood up to PG&E and never gave in.  

Are the victims happy with the settlements?

Though each victim’s story is different, each lost a certain peace of mind as a result of the explosion.  They will never that get back.  They will never sleep the same again.  Money is a poor substitute for peace of mind.  But the victims are satisfied that they did their part to hold PG&E accountable for its actions and for what it did to their neighborhood.  The victims did their part in exposing PG&E’s wrongdoing, and in perhaps bringing about change for the better, making it less likely that something like this will happen again.  To that extent, the victims are pleased with the settlement. 

The jury was supposed to be empanelled in February to hear and decide ten families’ test cases against PG&E. But over the last few weeks, while the attorneys argued pre-trial motions, a number of those families’ cases  settled. Today, the judge ruled that the four cases that are still on for trial (Healy, O’Neill, Chea, and Kim) are not a sufficient representative sample of the more than 100 lawsuits that remain. So he ordered the trial date off calendar.

About a quarter of the more than 100 cases filed against PG&E have now settled. Many of the settlements have come in the last couple of months. With the trial date off calendar, all the lawyers are to return to court on January 23 to provide the court with a plan for proceeding. The plan is to include a way of possibly settling all families’ claims without the need for any trial at all.

Certainly, PG&E has settled more cases recently.  Is that because PG&E has decided settling the cases was the right thing to do for the victims of the explosion? Or was it simply because trial was right around the corner? 

We’ll know more about that in the next few weeks.

Related coverage from Joshua Melvin at the San Mateo County Times.

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.

 

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.

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. 

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 

Today’s gas leak at the intersection of Glenview and Earl Avenue served as a frightful reminder to the Crestmoor residents of the September 2010 San Bruno explosion.  For many residents the sight of fire engines and the call to evacuate will rekindle flashbacks and distressing dreams of the event.  There’s no doubt that this gas leak will exacerbate many San Bruno residents’ Post Traumatic Stress Disorder (PTSD). 

Even PG&E’s psychological experts agree that many Bruno residents now suffer from PTSD.  Psychiatrists rely upon the DSM IV for the diagnostic features of PTSD.  Those who suffer from PTSD may have personally experienced the explosion and suffered from the threat of death or physical injury to self or the threat of death or injury to a family member or other close associate.  

The PTSD  victim’s response involves intense fear, helplessness, horror, and agitated behavioror.  The symptoms include persistent re-experiencing of the traumatic event; often referred to as flashbacks.  The victim also may show a persistent avoidance of stimuli associated with the trauma such as fire engines or loud noises that sound like the roar of the uncontrolled gas fire. Other symptoms include a general numbing resulting in feelings of detachment or estrangement; and an inability to feel emotions such as intimacy or tenderness.   

Another common symptom of PTSD is a sense of a foreshortened future:  not expecting to have a career, marriage, children or even a normal life span.

Although today’s gas leak is a sad reminder of the tragedy nearly two years ago, it also confirms the intensity of emotional distress the residents have suffered.  Not all residents know that their symptoms amount to PTSD.  But victims should not delay contacting an attorney.  The two year anniversary of the event – September 9, 2012 is also the deadline for filing a claim for any damages (physical, emotional, or property related) against PG&E.

PG&E says that its first priority is safety.  PG&E says its next priority is compensating the victims of the San Bruno fire. 

But are those really PG&E’s priorities?

PG&E has just launched a multimedia advertising campaign designed to make itself look good.  According to the San Francisco Chronicle, the campaign will cost $10 million.

It might appear that, with the trial approaching, PG&E’s first priority is repairing its public image.  Otherwise, why wouldn’t PG&E spend the $10 million on badly needed safety upgrades instead?  Or on compensating those victims who, to this day, have received nothing from PG&E for the explosion PG&E admits it caused?

PG&E told the Chronicle that it is running the PR campaign because customers want it.

[Customers] want to hear what we are doing, about the work we are doing every day about safety and reliability . . .[they want to know about] what we are doing to make our pipelines safe and reliable."

Maybe PG&E could have just tucked a flyer in with next month’s utility bill.  That might have cost a little less than $10 million.