The tragic deaths, burns, and extensive property damage caused by the recent pipeline explosion in San Bruno last week obviously present a scenario of enormous human suffering. Unfortunately, however, if they are anything like the circumstances surrounding other significant spills and explosions which we have handled over the last few years (from the 2004 Walnut Creek gas pipeline explosion to Cosco Busan and even Deepwater Horizon), they will probably result in wide-spread litigation. In this respect, there are a number of teaching points which our prior cases suggest.
First, the litigation will be multi-faceted, not just involving claims of injured parties against PG&E and its insurers, but also claims against third party contractors who may have scratched the gas line earlier during sewer repair work in the vicinity, or against local municipalities for poor oversight, or possibly even against welding equipment manufacturers.
Second, though civil suits may not be filed for another year or two, extensive governmental investigations are already under way. Based upon our past experiences, these governmental investigations, whether through OSHA, or the federal Office of Pipeline Safety, or NTSB, or one of many state environmental agencies, or even the District Attorney, will all have significant ramifications for the civil litigation to follow. It thus behooves all concerned to track these proceedings very carefully.
This is so for several reasons. For one thing, the fact findings and the conclusions of the governmental investigations tend ultimately to be the framework for the civil claims. For example, violations of work place safety regulations have been fashioned as the centerpiece for negligence per se claims, and any history of earlier violations can be pleaded as the basis for punitive damages. Additionally, though they are not technically admissible as evidence, the eventual reports will loom large in civil discovery. There is even a significant risk that some of them will be received in evidence when the jury is selected either as the basis for expert opinions or as evidence of a pattern of conduct. We have even seen them offered as proof that one or more defendants have upgraded their standards to comply with the governmental findings as part of a strategy to downplay the risk of exemplary damages.
Moreover, the governmental investigation process itself presents important tactical challenges for companies whose witnesses and documents are being scrutinized. The interviews of the witnesses can be agonizingly informal, often they are not even under oath, they are frequently conducted by investigators who are not particularly skilled at cross-examination, and the resulting transcripts are sometimes disjointed. So the witnesses need to be prepared extremely carefully, and counsel will naturally need to walk a very fine line between cooperation offered to deflect criticism and resistance which can irk regulators and adversely affect their findings.
In sum, the time to prepare for civil litigation is now because findings of governmental investigations may turn out to be a key road map later chosen by claimants personal injury lawyers.
For further information, please contact William H. G. Norman, a partner at Cooper, White & Cooper LLP and a member of the firm’s Energy, Environmental and Pipeline Safety Group which has handled numerous cases for oil and gas pipeline clients involving spills and explosions. Their consultation has ranged from the November, 2004 Walnut Creek explosion, the Suisun spill, Cosco Busan, and most recently the BP oil spill in the Gulf of Mexico.