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PacifiCorp opposes ‘emotional’ damages in Phase II

PacifiCorp is attempting to block evidence of non-economic damages, and of its unethical conduct, ahead of a Phase II trial set to begin next month in James et al vs. PacifiCorp.

In a pre-trial motion filed Dec. 13 in Multnomah County Circuit Court, the company made 34 separate requests for limitations on evidence and arguments plaintiffs may present to the jury.

Plaintiffs filed a similar motion the same day with 19 requests for limits on PacifiCorp, including barring the company from presenting arguments that it may not have caused the fires at issue.

Judge Steffan Alexander is expected to rule on the motions by a pre-trial conference set for Jan. 5, 2024. The trial is scheduled to begin Jan. 8, 2024, with two more set for February and April.

The case background

PacifiCorp was found liable June 12 for negligently causing the Santiam, South Obenchain, Echo Mountain Complex and 242 fires during high heat and wind conditions Sept. 7, 2020. Seventeen plaintiffs were awarded $94.4 million, and an additional 22 plaintiffs will have claims heard in Phase II to help determine the strength of roughly 5,000 remaining class claims.

At issue for non-economic damages is a 1986 state law referred to as the Physical Impact Rule, which says a claim for non-economic relief must be supported by physical losses.

The Oregon Supreme Court revised the rule in 2017 to allow exceptions for emotional distress, but PacifiCorp claims plaintiffs have not met the requirements for these exceptions. 

What PacifiCorp wants excluded 

PacifiCorp asked that evidence of non-economic damages be excluded for the emotional toll of financial losses, frustrations from seeking fire recovery funds and impacts on friends and family.

The Dec. 13 motion further asked to exclude evidence of non-economic damages based on losses of real estate, personal property and pets. 

PacifiCorp claimed case law supports the exclusions and, if emotionally-intense experiences do not support non-economic claims, how much more so for losses from what it called everyday property.

The Phase I jury awarded $67.5 million in non-economic damages after hearing testimony from fire survivors who lost homes, heirlooms, photo albums, neighborhoods and a sense of cultural identity. PacifiCorp argued it was improper for the jury to consider these factors, and claims the $225 million in non-economic damages for the Jan. 8 trial is needlessly excessive compared to Phase I.

The company additionally asked the court to exclude evidence of its conduct before and after the fires and during Phase I proceedings.

Specifically PacifiCorp asked to exclude evidence of its vegetation management program, its refusal to de-energize during the fires, and its destruction of evidence and coercion of witnesses. It said such evidence relates to findings of negligence, which are not at issue in Phase II.

It also said all evidence from PacifiCorp employees should be excluded, including emails, video depositions and live testimony, arguing this evidence is similarly irrelevant to Phase II.

PacifiCorp has also asked to exclude any references to plaintiffs as “survivors” of the fires, as well as references to fire fatalities including five deaths from the Santiam Fire. They said such references would unduly prejudice the jury, and that fire deaths are not at issue in the suit.

Limitations plaintiffs requested

 Among requested limitations by plaintiffs was the proposed exclusion of any arguments or evidence related to what may have caused the fires. PacifiCorp has said in multiple court filings that Phase II jurors should hear alternative theories of how the fires started, and alternative theories of who or what caused individual plaintiffs’ losses.

In the Dec. 13 motion, plaintiffs said the issue of liability was resolved by the Phase I jury and PacifiCorp should not be allowed to relitigate the matter. The June 12 verdict has already been upheld once after Alexander issued an order Dec. 1 denying PacifiCorp’s request to set aside the verdict.

Plaintiffs specifically cited PacifiCorp’s repeated argument that the Beachie Creek Fire, which was burning prior to Labor Day 2020, was the true cause of damages in the Santiam Canyon.

Plaintiffs said the Phase I jury upheld the argument that PacifiCorp’s actions intensified the impacts of the Beachie Creek Fire and started numerous other fires throughout the region.

Plaintiffs also asked for PacifiCorp to be blocked from presenting evidence of its ability to pay multi-million-dollar damages and the impacts this would have on the company’s finances. 

In prior filings they have accused PacifiCorp of attempting to persuade jurors that they might have to declare bankruptcy, or would pass damages on to ratepayers, if judgments were too high.

Plaintiffs also want to exclude evidence of third-party financial recovery such as FEMA support, insurance payouts, GoFundMe campaigns and the like, arguing this information is prejudicial and irrelevant. 

PacifiCorp is allowed to deduct insurance payouts from damages to individuals whose insurers were part of a $55 million settlement with PacifiCorp, and plaintiffs said this may also be prejudicial.

Similar plaintiff requests objected to evidence that PacifiCorp has allegedly made greater investments in fire preparedness and prevention since 2020. Other objections dealt with specific class member claims and whether or not potentially prejudicial or misleading evidence may be presented.

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