United States District Court, N.D. California
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR A
LIMITING INSTRUCTION AND OTHER RELIEF REGARDING EVIDENCE OF
THE SAN BRUNO RUPTURE
THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE
On July
10, 2016, Defendant Pacific Gas and Electric Company
("PG&E") filed a Motion for a Limiting Instruction
and Other Relief Regarding Evidence of the San Bruno Rupture.
Dkt. No. 733 ("Mot."). The Government timely
opposed the motion, Dkt. No. 735 ("Opp'n"), and
the Court held oral argument the following afternoon, Dkt.
No. 739. After carefully considering the parties' written
and oral arguments, the Court hereby GRANTS IN PART
PG&E's motion, for the reasons set forth below
BACKGROUND
This
Court previously denied PG&E's motion in limine
to exclude all evidence and argument relating to the
September 9, 2010 San Bruno pipeline explosion, but drew
careful limitations on how such evidence and argument may be
presented to the jury. Dkt. No. 460 ("MIL Order")
at 5-12. Since trial began, the Court has issued multiple
curative instructions to guarantee the jury understands that
it is not tasked with determining what did or did not cause
the San Bruno explosion, and that it will hear no evidence
about the cause of that explosion. See, e.g., Trial
Tr., Vol. 10 at 1343:12-1344:6.
On July
6-8 2016, the Government questioned William Manegold on
direct examination regarding his work as a former employee of
PG&E. At the close of testimony on Friday, July 8, 2016, PG&E
expressed the following concerns: that "the explanation
for why people are doing program reviews" - which Mr.
Manegold had discussed during his testimony - "is
because they were looking at the program [after the San Bruno
explosion]"; that the jury would need this context to
understand those "program reviews"; but that if
PG&E "ask[s] a question [related to the San Bruno
explosion], the Government is going to say: You've opened
the door" to more San Bruno evidence. Trial Tr., Vol. 17
at 2556:20-2557:2. Counsel for PG&E therefore sought leave to
"file a short brief for [the Court] to read . . . to
[establish clarity] on what [he] can ask and what [he]
can't ask related to San Bruno." Id. at
2556:17-19. The Court permitted the parties to brief this
issue, with a brief due from PG&E by "end of the
day" Sunday, July 10, 2016, a reply due from the
Government by noon on July 11, 2016, and a hearing to be held
at 4:00 P.M. on July 11, 2016.
The
motion PG&E actually filed at 11:12 P.M. on Sunday,
July 10, 2016 differed in many respects from the
brief PG&E requested leave to file. While PG&E had
previously sought only clarity on what cross-examination
would be permitted without "opening the door" to
further San Bruno evidence, PG&E now seeks three remedies:
(1) that "the Court should give the jury a cautionary
instruction, reaffirming its earlier instruction"; (2)
that "the Court should allow defense evidence about
activity after San Bruno without concern of inviting more
Government evidence beyond that permitted by the in
limine order"; and (3) that "the Court should
exclude the [California Public Utilities Commission
(‘CPUC')] data responses and strike all related
testimony." Mot. at 6-7.
DISCUSSION
Though
the Court agrees with the Government that "[o]nly
twenty-two lines of [PG&E's Motion] addresses the topic
on which the Court authorized briefing, " Opp'n at
1, the Court finds good cause to address PG&E's three
requests, and does so below.
I.
The Court GRANTS PG&E's motion for a limiting
instruction.
Though
not the topic of PG&E's initially requested briefing, the
Court agrees with PG&E that "[i]t is time to be honest
with the jury" about the San Bruno explosion, because
"without context, the jury is being improperly led to
believe that [CPUC and National Transportation Board
(‘NTSB')] scrutiny indicates guilt." Mot. at
2. The Court has long been concerned that evidence of
CPUC's or NTSB's conclusions about either the San
Bruno explosion or PG&E's regulatory compliance
"would unfairly encourage the jury to abdicate its
critical role as fact-finder, " in part because
"there is a substantial risk that the jury may assume
that if the CPUC, an authoritative government agency, imposed
remedial measures on PG&E, then PG&E is deserving of
punishment." MIL Order at 17 (internal quotation marks
and alterations omitted). This is why the Court carefully
constructed its in limine Order to exclude
CPUC's and NTSB's conclusions about the San Bruno
explosion and PG&E's regulatory compliance. Id.
at 14-17.
But the
Court's rationale for excluding CPUC and NTSB
conclusions does not apply to the data
responses PG&E provided to CPUC and NTSB in the process,
as the responses themselves indicate nothing about either
agencies' resulting conclusions or remedial measures.
Meanwhile, because many such responses concern the conduct or
policy at issue in Count 1 and the regulatory compliance at
issue in Counts 2-13, rendering them independently admissible
evidence on those counts, [1] it was inevitable that the existence of
the CPUC and NTSB investigations would surface. And it is
unsurprising that PG&E now seeks to provide context for the
responses it provided in those investigations. The Court is
therefore pleased that PG&E finally agrees that the best
course of action in this criminal trial is to mention the San
Bruno explosion to the jury, but to mention it
carefully.[2]
The
Court further agrees with PG&E that "the best way to
solve this [context] problem is through a limiting jury
instruction, rather than hav[ing] [counsel] flail around
trying to figure out what evidence to put on and what not to
. . . ." Trial Tr., Vol. 18 at 2564:25-2565:2.
Accordingly, the Court hereby GRANTS PG&E's request for a
limiting jury instruction. The Court will read the jury
instruction proposed by PG&E, see Mot. at 6, with
minor modifications, before testimony begins this morning.
II.
The Court DENIES WITHOUT PREJUDICE PG&E's motion to
permit context evidence without concern of inviting more
Government evidence.
PG&E's
second request - that PG&E "be free to introduce
evidence of the massive investigations after the explosion as
necessary-without risk of the government arguing or implying
that any allegation in this case led to the rupture, or
attempting to confuse the record further by seeking to admit
still more evidence of any regulatory investigations, "
Mot. at 2 - is the only request even arguably contemplated by
the originally permitted briefing. And ...