Some things old and new

Today’s propane industry litigation tends to generate many of the same themes as the cases presented when I first started defending them more than 20 years ago.

John V. McCoy

A number of significant changes have altered the landscape in defending those common actions, however. Here are some that I believe have had a dramatic impact on lawsuits.

1. A highly organized plaintiff’s attorney group. No one likes to reinvent the wheel. This is true of the plaintiff’s bar as well. There are regular meetings of plaintiff’s attorneys where they exchange documents produced by industry members in lawsuits, experts for the industry and against the industry and ideas and strategies. These lawsuits are often well constructed and well prepared.

2. The Internet has allowed access to information with the click of a button. It is no longer difficult to find out about accidents in real time. The information available on any subject is limitless, and it allows for incredible advances in preparation for both sides of a case. It also raises the bar when it comes to documentation. Almost anything we put into our computers is subject to discovery in the event of a lawsuit.

3. Rambo litigation – or scorched earth practices. Some lawyers on the plaintiff’s side are renowned for seeking millions of pages of documents and deposing scores of witnesses who have, at best, an extremely peripheral nexus to the lawsuit. Some jaded souls might suggest this is to exact as much pain as possible on the propane industry in order to exact a decent settlement on cases that have questionable liability but large damages.

4. The Propane Education & Research Council (PERC) has brought focus on safety and training with sufficient resources to make it a priority. This has had a dramatic, positive impact on reducing injuries and improving safety. I believe the industry will be well served as PERC continues to develop new programs to address safety concerns.

5. There are theories of claims that reflect the creative nature of the plaintiff’s bar to find new ways to attach liability. The attorneys that represent the propane industry are as creative on their side of the ball as well.

6. Tort reform has begun to take hold across the country. There are 13 states that have adopted some form of tort reform to protect the industry in the event of an accident. The most recent state to adopt protective legislation for the industry is Wisconsin, my home state. I am glad to say I played a small hand in seeing that come to fruition. I encourage states that have not yet adopted tort reform to look to statutes already on the books and to industry outreach programs to help get legislation drafted and passed.

7. Technology is providing safer ways to use propane. Some of the new technologies that have had dramatic effects are the OPDs now in all gas grill cylinders, the use of GPS technology to monitor tank fuel levels and consumption, and cell phones for immediate response to gas leaks. The Internet also allows distribution of warnings and product recalls on a real-time basis and to virtually every consumer in the marketplace.

8. Consolidation of the industry. There are still a lot of mom and pop businesses, but as the market for propane has matured, the only way to improve on the bottom line is through efficiencies born of consolidation. This consolidation seems to accelerate each year and presents a continuing challenge in litigation with transfer of records and consistency of personnel.

At the core of each case are the facts that surround the accident. That has been, and always will be, true. Nonetheless, the legal landscape, in terms of defending, is impacted by technology and business decisions. These cases are always difficult to defend even when the gas company has viable defenses because of the substantial injuries that are involved in these accidents.

There are many more changes you could add, and I encourage you to e-mail your thoughts or suggestions.

John V. McCoy is the president of McCoy & Hofbauer, S.C. and specializes in the representation of propane companies. He can be reached at 800-599-8300 or jmccoy@mh-law.us.