PacifiCorp is attempting to block evidence of non-economic damages based on emotional suffering ahead of a Phase II trial set to begin this 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.
A hearing on the motions was scheduled for Dec. 29 (after Our Town press time) before Judge Steffan Alexander. The trial is scheduled to begin Jan. 8 with two more trials set for February and April.
PacifiCorp was found liable June 12, 2023, for negligently causing the Santiam, South Obenchain, Echo Mountain Complex and 242 fires 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.
PacifiCorp claims plaintiffs have not offered proof of these exceptions and asked that evidence of non-economic damages be excluded if there is no underlying physical loss. They also asked for an exclusion of evidence related to the emotional toll of financial losses, frustrations from seeking fire recovery funds and impacts of the fires 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 argued, if emotionally intense experiences do not support non-economic claims, neither do losses from what it called everyday property.
The company additionally asked the court to exclude evidence of its conduct before and after the fires and during Phase I proceedings, claiming such evidence is irrelevant to Phase II.
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 also said all evidence from PacifiCorp employees should be excluded, including emails, video depositions and live testimony.
The plaintiffs’ requests included proposed exclusion of any arguments or evidence related to the cause of the fires, saying causation was settled in Phase I.
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.
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. Plaintiffs argued it would be improper for PacifiCorp to relitigate the matter and may prejudice and confuse the jury.
Plaintiffs also asked that PacifiCorp 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 would have to declare bankruptcy or pass on damages to ratepayers, if judgments were too high.
