Ka Loko judge denies motion

Pflueger criminal investigation ongoing, BLNR holding off two weeks to inspect dam

by Amanda C. Gregg – THE GARDEN ISLAND

Fifth Circuit Judge Kathleen Watanabe denied consolidating Ka Loko Dam Reservoir-related wrongful death and property damage lawsuits yesterday, in part because attorneys said more defendants could be added.

The motions were to consolidate four lawsuits stemming from the March 14, 2006 breach of the Ka Loko Reservoir Dam in Kilauea, in which seven lives were lost and millions of dollars in damages resulted.

Watanabe told a room full of attorneys working the cases that she was in part denying the motion because of the logistics of having more parties involved.

“As it is, you can’t even fit at the counsels table,” she said.

In addition, Watanabe said she was denying the motion because she had already given consideration to the setting of trials, slated for next year.

Watanabe said she would leave in place what the court had previously set and that there would not be deviation from the property damage or wrongful death trials, set to begin Feb. 2, and Sept. 7, 2009, respectively.

Watanabe did rule to consolidate cases for the purposes of discovery and pretrial matters and, following no opposition, added plaintiff Ronald Calisher to the property damage suit against Pflueger filed by several property owners claiming damages, including Honolulu native and entertainer Bette Midler.

Attorney David Minkin said there has been discussion of other possible defendants who may be held responsible for the breach; however, he made no mention of names or entities on the record.

To date, no motions to amend the list of defendants has been filed.

The four suits on the calendar yesterday included Bruce Fehring v. Pflueger — Fehring lost several friends and relatives following the breach — Midler v. Pflueger, to which Calisher will be added, and Pflueger v. the state of Hawai‘i. Defendants in each of those cases bear several of the same defendants, including Thomas Hitch, Kilauea Irrigation Company, the state of Hawai‘i, and C. Brewer and Company.

As a criminal investigation into whether Pflueger is culpable in the breach is ongoing, attorney William McCorriston asked the Board of Land and Natural Resources Friday not to inspect the dam, offering instead data collected from other engineers.

The board deferred its decision until the next March meeting, slated for the two-year anniversary of the breach.

BLNR member Ron Agor said in an interview yesterday that the BLNR had already conducted the Phase I review of the dam and had requested state engineers go on site to begin Phase II. McCorriston met that request with hesitation, Agor added, and offered materials gathered by Pflueger engineers.

“We then asked our engineers to work with Pflueger to see if they can make sense of the engineering data,” Agor said, noting Pflueger engineers had claimed their data to be more comprehensive.

Whether those data are in fact more comprehensive will be determined by the state, Agor added.

“Whether to trust it will be determined by us,” he said. “The Kilauea community wants to know if the area is safe and would like the state to do the investigation and not just take the word of the owners of the land.”

State engineers will work with Pflueger staff to make that determination within two weeks, he said.

Attorney General Mark Bennett said yesterday that though his office is still conducting a criminal investigation into Pflueger’s possible role in the breach, no firm end-date has been set.

“It’s our hope that by the middle of the year, approximately, we’ll be able to have a final determination of whether to present the case to a grand jury or attempt to bring criminal charges or not,” he said. Bennett also said his office does not comment, as a matter of policy, on other possible pending investigations.

Though negligence is expected by attorneys to be raised at trial, to date no counter claim against the relatives of those who died has been filed.

• Amanda C. Gregg, assistant editor/staff writer, can be reached at 245-3681 (ext. 252) or agregg@kauaipubco.com.