Judge Will Use Experts to Estimate PG&E’s Wildfire Liability
SAN FRANCISCO (CN) – The amount Pacific Gas and Electric must pay wildfire victims will be based on expert opinions on the average damages for wrongful death and property loss claims, along with prior PG&E settlements in similar disputes, a federal judge said in court Tuesday.
U.S. District Judge James Donato, who is overseeing wildfire liability estimation for PG&E’s bankruptcy case, said it would be impractical to analyze tens of thousands of wildfire claims on an individual basis.
“We’re clearly not doing individual claims,” Donato said. “That would take five years to get that done.”
PG&E must exit bankruptcy by June 30, 2020, to access a $21 billion wildfire liability fund established by the California Legislature this year.
Donato said he expects to hold hearings with expert witnesses in January to determine the average damages for personal injury, wrongful death and property loss claims, and to multiply those amounts by the number of claims filed. The deadline to file wildfire claims in the bankruptcy case is Oct. 24.
The judge said he expects the hearings will take seven to eight days, far less than the five weeks PG&E had requested.
“I’m looking for an estimate that can be done without undue delay,” Donato said.
PG&E lawyer Kevin Orsini argued the court should not only consider whether victims have legitimate claims but also if those claimants can win a court case against the utility.
“I think it’s not just, ‘Do the facts fall into place? Do they have a cause of action?’” Orsini said. “What’s the likelihood on those facts that they would prevail.”
Orsini acknowledged it would be impractical to conduct that analysis for each of the 22 significant wildfires PG&E is accused of starting. He suggested the court pick “some of the biggest fires” to focus on.
The attorney also said PG&E would not dispute it caused 21 fires, excluding the 2017 Tubbs Fire. However, the company will dispute it was negligent or subject to inverse condemnation, a legal principle that allows a public entity to be held liable for damage caused by its equipment even if it was not negligent.
On Tuesday, Donato said he would not consider PG&E’s request to appeal a bankruptcy judge’s decision to allow a state court jury trial on whether PG&E is liable for the 2017 Tubbs Fire unless that trial is delayed.
“They have their day in court,” Donato said, “There’s no reason for me to interfere with that.”
A hearing on a motion to expedite the Tubbs Fire trial is scheduled for Sept. 16 in San Francisco. The trial is expected to start in early to mid-January if the motion is granted.
Orsini complained it would be unfair to let an “unrepresentative set” of 40 plaintiffs go to trial on Tubbs Fire claims. Regardless of the outcome, Orsini predicted both sides will be back before Donato objecting to the fairness of the trial and asking him to ignore the verdict. That will require Donato to “understand what those issues were, what those facts were,” Orsini said.
Donato replied he will likely accept the jury’s verdict, regardless of the outcome.
“The cardinal rule is the jury is always right,” Donato said. “I’m not concerned about having to re-litigate Tubbs.”
Also on Monday, lawyers for the state of California and United States government asked Donato not to lump their unique claims for recovery in with the other wildfire claims.
Paul Pascuzzi, a private attorney representing the state of California, said most of the state’s claims will be liquidated and not subject to estimation, but a small portion of unliquidated claims may need to be estimated separately.
“We want to be able to present a case on our important claims as well: fire suppression, environmental cleanup, emergency services, disaster aid,” Pascuzzi said.
Donato said he may hold an ancillary hearing in February to resolve the state and federal government’s wildfire claims against PG&E.
The judge asked PG&E and wildfire victims’ attorneys to submit a plan for estimating wildfire claims by Sept. 30. He scheduled the next court hearing for Oct. 7.