PacifiCorp is objecting to the class members selected for two upcoming trials in Phase II of a wildfire lawsuit, claiming they are not representative of the class of roughly 5,000 fire survivors.
In a motion filed Oct. 24 in James et al vs. PacifiCorp in Multnomah County Circuit Court, the defendants demanded that six of the 20 plaintiffs be replaced with other class members.
The motion argued the 20 individuals represent claimants from only three of the four fires at issue, and their combined damages of $559 million are disproportionate to the rest of the class.
As of press time plaintiffs had yet to respond to the motion, nor had a hearing been set.
The lawsuit entered Phase II after a Portland jury found PacifiCorp liable June 12 for negligently causing the 2020 Santiam, South Obenchain, Echo Mountain Complex and 242 fires on Labor Day 2020. An initial group of 17 named plaintiffs was awarded $90 million.
Phase II includes two damages trials set for Jan. 8 and Feb. 26, 2024, during which the 20 plaintiffs would have their cases heard in groups of 10. Judge Steffan Alexander’s stated goal for these bellwether trials is to give parties a larger cross section of claims and jury decisions to assist with mediation and settlements.
In a Sept. 20 case management order, Alexander gave plaintiff attorneys discretion to select class members for the Phase II trials. Both groups were required to include at least one renter who suffered partial or total losses and at least one claimant who suffered ash or smoke damage.
Two groups of ten claims were submitted by plaintiff attorneys Sept. 25 and Oct. 5, with one renter and one smoke damage claim in both groups. The 20 claims stemmed from the Santiam, South Obenchain and Echo Mountain Complex fires and did not include claims from the 242 Fire.
PacifiCorp argued this lack of representation of the 242 Fire is grounds for plaintiff attorneys to replace three claimants in each group with class members who satisfy their concerns. While the Sept. 20 order did not require representation from each fire, PacifiCorp argued the intent was for plaintiff attorneys to select a broader cross-section of class members than was submitted.
“Rather than reflect anything close to a representative sample of the remaining class members, the selected Phase II plaintiffs are even less exemplary than the (Phase I) plaintiffs,” read the Oct. 24 motion.
PacifiCorp also argued that the $559 million sought by the 20 Phase II plaintiffs was an attempt by plaintiff attorneys to “stack the deck” with high-value claims stemming from total losses. The company’s attorneys argued a larger number of class members was awarded a fraction of these damages in June, and said Phase II plaintiffs should include more lower-value partial loss claims.
PacifiCorp argued, without resolving these issues, the outcomes of Phase II trials will provide little useful information for out-of-court resolution as the results would be skewed in plaintiffs’ favor.
While this matter is pending, parties are awaiting a decision by Alexander on whether or not PacifiCorp should pay full damages after settling wildfire claims with insurance companies. Parties argued the matter Oct. 13 and as of press time Alexander had yet to issue a ruling.
Also pending is whether or not the June 12 verdict should be set aside or a mistrial declared. PacifiCorp argues the jury’s decision had no basis in the law or evidence, and the jury may have been prejudiced by witness testimony about fire deaths. A Nov. 9 hearing is set for these matters.
Additionally PacifiCorp submitted a new motion Oct. 17 asking for a reduction of punitive damages, set by the jury in June at 25% of total damages. PacifiCorp argues it has taken measures on its own to increase fire readiness and reduce risks, and that punitive damages are unnecessary to encourage changes in its behavior.
