Information on wildfire litigation

Wildfire Information Filings – Post June 30, 2023

PacifiCorp’s post-trial motion in the James Class Action Wildfire Litigation

Summary of Filing

In the motion, PacifiCorp asks the Multnomah County Circuit Court to correct several legal errors that occurred during the recent class action wildfire case captioned James v. PacifiCorp. If the trial court fails to correct these errors,  they will be appealed to the Oregon Court of Appeals. Here is a brief summary of the relevant issues:

1. Noneconomic Damages. The jury should not have been allowed to award noneconomic damages. ORS 477.089 made “economic and property damages” the “exclusive remedies for damages or injury to property caused by a wildfire.” All of Plaintiffs’ claimed injuries here are injuries to property, so only economic damages should have been awarded. And Oregon law prohibits recovery of noneconomic damages for injuries to property resulting from non-intentional fires. Despite these twin bars on noneconomic damages under the circumstances, the jury awarded $67.5 million in noneconomic damages to Plaintiffs—over 90% of the total damages awarded to Plaintiffs. 
2. Evidence of Class Injuries. Plaintiffs bear the burden of proving liability as to the entire class, and certainly should not have been instructed that it “may assume that the evidence at the trial applies to all class members.” (June 6, 2023, Final Jury Instructions at 16.) Oregon law unequivocally requires that “[t]o prevail in a class action,” plaintiffs “must prove” each element of each claim “on the part of all class members.” It was undisputed that different class members were affected by different fires with different causes—proof that one class member may have been affected by an alleged utility fire could not be proof that some other class member, located miles away, was affected by the same fire. It was error to allow Plaintiffs to prove only the claims of the class representatives and then ask the jury to “assume” that evidence establishes the claims of all class members. Rather, it was Plaintiffs’ burden to prove the claims of every class member. Plaintiffs’ trial presentation glossed over the myriad of individualized issues at play, and the Court’s instructions permitted the jury to nonetheless find liability and causation as to the entire class. Because Plaintiffs failed to meet their burden of proving their claims as to the entire class, the Court should grant judgment in favor of PacifiCorp on the class claims; at a minimum, a new trial should be ordered with the jury properly instructed as to Plaintiffs’ burden. 
3. Causation Regarding Class Wide Liability. The jury’s class-wide findings of causation with respect to the Santiam Canyon fire were unsupported by evidence. Plaintiffs were required to prove that PacifiCorp—and not the presence of a separate, lightning-ignited fire—caused the injuries of each individual plaintiff and every class member in the Santiam Canyon. Causation must be established by evidence of a “reasonable probability,” not a “mere possibility.” And in a class action, causation—like every other element—must be proved across the entire class. The Santiam Canyon class boundary was defined to include properties south of a line on a map selected by Plaintiffs’ counsel—a line Plaintiffs’ counsel tried (unsuccessfully) to change in the middle of trial when it became clear that the Beachie Creek fire, not any utility-caused fire, was the actual cause of injury to properties in the Santiam Canyon. Plaintiffs failed to establish causation as to this vast swath of property, and their own experts and witnesses demonstrated that it would have been impossible for any PacifiCorp-caused fire to damage each and every fire-affected property in this area. This failure of proof also undermined the ascertainability of the class because the class definition hinged on establishing who was injured by fire. Judgment for PacifiCorp on the claims of class members in the Santiam Canyon is required, or, in the alternative, decertification of the class.
4. Class Certification. The jury adjudicated liability as to the whole class, even though this Court certified only an issues class. Not a single issue identified in the Court’s class certification order was presented to the jury; instead, the verdict form asked the jury to find liability, which it did. This violated (i) ORCP 32, which requires both a written order certifying the class before the decision on the merits and written notice to the class members, and (ii) the federal constitutional right to due process, which likewise requires that class members receive notice and an opportunity to opt out and that defendants receive notice of the claims brought against them and an opportunity to defend against those claims. The unofficial revision of the scope of the class, made near the end of trial with no analysis as to the propriety of class certification, requires vacatur of the jury’s verdict. 
5. Constitutional Due Process Rights. Relieving Plaintiffs of their burden to prove the claims of the absent class members, and instructing the jury to “assume that the evidence at the trial applies to all class members,” violated PacifiCorp’s federal constitutional right to due process. (June 6, 2023, Final Jury Instructions at 16.) “A defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues.” Plaintiffs unquestionably did not prove their claims with class-wide evidence, and Plaintiffs’ reliance on the class action mechanism and on the assumption that individual evidence could apply to the class made it impossible for PacifiCorp to litigate these claims on an individualized basis. This “rough justice” approach to litigation is inconsistent with the constitution’s protection of due process. These and many additional errors propelled the jury towards its unsupported verdict. 
6. Public Safety Power Shutoffs and Gross Negligence. The Oregon Public Utilities Commission and not juries situated throughout Oregon should determine whether a utility acted reasonably in turning off the power before a weather event. The Oregon Public Utility Commission is best situated to regulate the transmission and distribution of electricity in Oregon and has created rules governing safely shutting off the power.

PacifiCorp's Motion to Stay Any Phase II Trials

Summary of Filing

The Motion to Stay asks the Multnomah County Circuit Court to stay damages trials in the class action lawsuit pending resolution of the post-trial issues identified by PacifiCorp. Those issues include:

1. Plaintiffs failed to establish class-wide causation or class-wide injury. 
2. The jury awarded noneconomic damages in violation of Oregon law, and that the Court lacked jurisdiction over specific portions of the case. 
3. Evidence of gross negligence or recklessness by PacifiCorp was insufficient, the evidence required for punitive damages was insufficient, the elements necessary for trespass or nuisance were not proven, and personal property damages were not adequately proven. 
4. The jury found class-wide liability based on instructions that improperly relieved Plaintiffs of their burden to prove the claims of every absent class member and directed the jury to “assume that the evidence at the trial applies to all class members.” 
5. PacifiCorp challenges several other instructions and evidentiary rulings, including the adverse inference instruction related to pre-litigation spoliation, which effectively relieved Plaintiffs of their burden of proof. 
6. Certification of the very class of plaintiffs that will be litigating “Phase II” was improper, citing evidence from the trial demonstrating that the class does not satisfy ORCP 32 criteria.

A decision in PacifiCorp’s favor on any of these critical issues—whether by the Multnomah County Court or an appellate court—will profoundly impact the damages trials. The Multnomah County Circuit Court denied this motion and set three damages trials in 2024. PacifiCorp will ask the Oregon Court of Appeals to stay the Phase II damages trials once the appeals are filed.

New Ligitation & Filings

PacifiCorp’s Motion to Dismiss the Vineyards’ Smoke Damage Lawsuits

Summary of Filing

PacifiCorp filed the Motion to Dismiss the lawsuit filed by Bridgadoon Vineyards, LLC lawsuit in Lane County Circuit Court. Similar motions to dismiss were filed in the complaints brought by Retraite, LLC; Parlance, LLC ; Vendange, LLC; and Samuel Robert Winery, LLC. PacifiCorp presents the following arguments for the Circuit Courts’ consideration:

1. The 2020 Labor Day windstorm caused at least 17 separate wildfires across Oregon and burned more than 1 million acres. Nearly three years later, one wine producer brings this lawsuit claiming that PacifiCorp ignited five fires that caused smoke particles to travel across the state to damage Plaintiff’s vineyard and grapes it purchased from other vineyards.  
2. Plaintiffs have the obvious factual problem of proving that any smoke damage to Plaintiff’s grapes resulted from PacifiCorp equipment dozens or even hundreds of miles away rather than from any of the other dozen or more wildfires burning over Labor Day weekend 2020.
3. Plaintiff’s claim for inverse condemnation fails on every element. To state a claim for inverse condemnation, Plaintiff must allege that (1) “the government” (2) “intentionally” acted “in a manner that necessarily caused” the injury to Plaintiff’s property (3) for a “public use,” in the case of claims under Article I, Section 18, or by a corporation. PacifiCorp is not the government, and there is no allegation anywhere in the complaint that PacifiCorp acted “under authority of law” in any relevant way. Nor does Plaintiff allege ultimate facts sufficient to show that any of PacifiCorp’s “intentional” acts were inevitable or “substantially certain” to cause smoke damage to Plaintiff’s vineyards. Just as occurred in the Douglas County case arising from one of the same fires at issue here, the Court should dismiss the inverse condemnation claim with prejudice.
4. Plaintiff’s other claims should be dismissed based on similar flaws. For example, Plaintiffs offer no factual allegations— whatsoever—to show that smoke damage to vineyards dozens or hundreds of miles away was a foreseeable risk of Plaintiff’s allegation that PacifiCorp was negligent in not installing “insulated[] distribution line conductors” months or years prior to Labor Day 2020 or any of Plaintiff’s other allegations of negligent conduct.
5. Plaintiff’s requested multiple damages are unavailable as a matter of law. As just one example, Plaintiff relies on Oregon Revised Statutes 756.185, which permits treble damages if a utility violates Oregon utility law in a grossly negligent or willful way. But the statute explicitly “does not apply with respect to the liability of any public utility for personal injury or property damage.” Oregon Revised Statutes 756.185(4). That clause forecloses trebling damage.
6. Plaintiff’s claim for “spoliation of evidence” fails. Even if Oregon law recognized a freestanding claim for spoliation—and it does not—the Oregon Court of Appeals has expressly rejected bringing claims for spoliation unless a party “first br[ings] the underlying claim and los[es] or suffer[s] diminution in its value.”
7. Plaintiffs seek an injunction requiring, among other things, PacifiCorp to “refrain from re-energizing powerlines on red flag warning days” and to “withhold distribution payments to its parent company, Berkshire Hathaway Energy, until PacifiCorp can certify it is sufficiently compliant with Oregon tree trimming laws.” Oregon law does not recognize a freestanding claim for an injunction. Even if it did, an injunction that effectively would permit Plaintiff’s counsel to run Oregon’s second largest utility, substituting their own judgment for that of the Oregon Public Utility Commission (“PUC”), usurps the PUC’s statutory and regulatory authority, and is barred by the doctrines of exclusive and primary jurisdiction. 

James case post-trial hearings: Case Management Order No. 8

On September 20, 2023, the judge in the James Multnomah County Court case entered Case Management Order No. 8 and set three phase II trials where plaintiffs will present evidence regarding their damages. Two of the trials will have 10-15 plaintiffs per trial. The third trial involves commercial timber plaintiffs. The first James phase II trial is set for January 8-17, 2024. The second James phase II trial is set for February 26 – March 1, 2024. The third trial regarding commercial timber interests is set for April 22-30, 2024.
 

James case post-trial hearings: Case Management Order No. 9

The Judge in the James case set the following post-trial hearings in Case Management Order No. 9:

1. October 13, 1:15 p.m.: Hearing on proposed limited judgment and PacifiCorp’s motion to set-off insurance recoveries.
   
2. November 9, 3:00 p.m.: Hearing on PacifiCorp's post-trial motions.
3. December 1, 1:00 p.m.: Hearing on plaintiffs’ motion for common benefit fee.