News for those who live, work and play in the Santiam Canyon

Trial delayed in PacifiCorp wildfire lawsuit

Reporter for The Canyon Weekly

PacifiCorp has been accused of stalling a class-action lawsuit filed by local wildfire survivors after opposing a lower court decision allowing plaintiffs’ claims to proceed to trial.

Jeanyne James, et al. v. Pacificorp was set for trial Monday, Aug. 15, in Multnomah County Circuit Court. However, the matter has been postponed indefinitely and may not be held until next year, according to attorneys for the plaintiffs.

This comes as PacifiCorp waits for the Oregon Court of Appeals to consider its challenge against a lower court decision certifying class action status for the plaintiffs, who have filed in opposition to the appeal.

A hearing for the appeal had not been scheduled as of press time.

Swell of legal claims

The suit was filed Sept. 30, 2020, after devastating wildfires tore through the Santiam Canyon earlier that month, killing five people, burning more than 400,000 acres and destroying an estimated 1,500 structures. The case has since been consolidated with two additional lawsuits, and the class of defendants has grown to include survivors of three other Oregon wildfires from the same timeframe, totaling 2,454 individuals.

Plaintiffs argue PacifiCorp was negligent not only in failing to de-energize power lines ahead of extreme wildfire forecasts, but also in failing to inspect equipment, clear hazardous vegetation, and formulate and implement an adequate wildfire prevention plan. 

In the Santiam Canyon alone, an estimated 13 spot fires were caused by downed power lines during a wind storm that pushed the fires rapidly westward on Sept. 7, 2020.

Plaintiffs are seeking a combined $1.6 billion and an order forcing PacifiCorp to de-energize power lines during extreme wildfire conditions in the future.

PacifiCorp has denied wrongdoing and argued, among other defenses, plaintiffs could not definitively prove PacifiCorp was at fault, that other parties contributed to the adverse outcomes of the fires, that it adhered to industry standards in maintaining and energizing its equipment, and the intensity of the 2020 wildfire season was an unavoidable act of God.

Granted class status

After spending nearly two years preparing for trial, plaintiffs crossed their largest procedural hurdle May 23 when Circuit Court Judge Steffan Alexander certified them as a single class of litigants. The class included any property owner impacted by the Santiam Canyon fire in Linn and Marion Counties, Echo Mountain Complex fire in Lincoln County, the South Obenchain fire in Jackson County and the 242 fires in Klamath County during September of 2020. 

The same ruling also bifurcated the lawsuit, with one phase determining PacifiCorp’s liability to the group as a whole, and a second phase determining any specific damages appropriate to each class member.

However, PacifiCorp appealed the ruling July 8, arguing the higher court ought to check Alexander’s work. While attorneys for PacifiCorp did not cite a specific legal error committed by the lower court, they said Alexander’s definition of the class as individuals impacted by four separate fires from throughout the state may have been too broad.

“Certainly, reasonable appellate jurists could disagree with the ruling that common issues predominate here, where four separate fires were each ignited in up to a dozen different locations per fire under different conditions and potentially through different mechanisms, and then spread in different ways,” read the appeal.

PacifiCorp also argued that a trial with 2,454 broadly-defined plaintiffs would not be the most efficient use of the court’s time, estimating the trial as it is planned may last around four months.

They proposed the alternative use of “bellwether trials,” which are smaller-scale trials of a handful of plaintiffs meant to show the conditions of an actual trial to the rest of the group. PacifiCorp said they believed bellwether trials would incentivize more plaintiffs to settle out of court, thus reducing the time and expense of a class-action trial.

PacifiCorp said they proposed this strategy to Alexander, who rejected the plan in favor of certifying the class. PacifiCorp said this is further evidence of why the appeals court should reconsider the May 23 ruling in the interest of increasing court efficiency.

Plaintiffs call foul

When the plaintiffs objected on July 22, they characterized PacifiCorp’s appeal as a stall tactic. They said the whole point of a class-action suit was to seek damages for a broad group of people, and plaintiffs do not need to be injured in the exact same way to prove that they were injured by the same action or inaction.

The objection added that, even if the plaintiffs in the class were separated, the resulting trials would deal with the same facts and the same fires, and no time would ultimately be saved by the court.

“Its proposal for an appeal now would merely introduce uncertainty and further delay into the sprawling litigation arising from the 2020 Labor Day fires, which plaintiffs and the trial court have endeavored to organize and streamline using available case management tools,” read the objection.

PacifiCorp rebuffed this objection in a July 29 filing urging the court to proceed with an appeal. They argued, contrary to plaintiffs’ assertions, that the facts of any lawsuit can change during the course of litigation, and an appeal would not cause delay but would help clarify a path forward.

They also continued to argue there are legitimate grounds for a difference of opinion in how broadly a class should be defined, and this alone is grounds for an appeal to be considered.

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