Paul C. Curtis
The Garden Island
LIHU‘E — Fifth Circuit Judge Kathleen Watanabe on Wednesday denied James Pflueger’s motion to delay the trial portion of his wrongful-death civil case until the manslaughter criminal case against him is decided.
Both cases deal with the March 2006 failure of Ka Loko Reservoir near Kilauea, owned by Pflueger and the Mary Lucas Estate, where millions of gallons of water flowed to the ocean, killing seven people and taking out homes and other property in the process.
Watanabe’s ruling means that, as presently scheduled, two of the main cases against Pflueger, a retired Honolulu auto dealer, may be running concurrently in two Lihu‘e courtrooms.
The wrongful-death case, Bruce Fehring et al (and others) vs. James H. Pflueger et al, will still go to trial as scheduled in early September, before Watanabe, while the main criminal case, State of Hawai‘i vs. James H. Pflueger (for manslaughter), is currently scheduled to go to trial in mid-October and run as long as eight weeks before 5th District Judge Randal Valenciano.
Some of Fehring’s family members died in the flood.
Of the roughly 30 cases naming Pflueger in the aftermath of the Ka Loko tragedy, two of the civil cases, Fehring and a property-damage case, Watanabe said, have essentially dictated her court’s crowded calendar for the rest of this year and beyond.
Watanabe said she was unaware of the criminal-case rescheduling, and unclear as to why the criminal case in Valenciano’s courtroom was rescheduled to October, to essentially run concurrently with the civil case in her court.
She denied Pflueger’s request to continue the civil case until two months after the criminal case was decided, as attorneys for various Pflueger and Mary Lucas Estate entities argued.
A property-damage case against Pflueger and others, one brought by entertainer Bette Midler, is now scheduled for May 2010.
Attorney Wesley Ching, representing Pflueger, said the two cases running concurrently would place a “huge burden” on his client, while attorney David Minkin, also representing Pflueger, said Tuesday he received two large boxes of documents from the state Attorney General’s office related to the criminal case that he hasn’t yet had time to look through.
In the criminal case, Minkin argued he hasn’t been able to file motions because he is not sure the AG’s office is through sending discovery documents.
Watanabe said it is “presumptuous” and a real concern for her court, that Pflueger’s attorneys would presume that she would reschedule the civil case just because of the rescheduled criminal case.
Minkin said 15,000 pages of new documents delivered to him this week make it nearly impossible for him to properly prepare for the criminal trial.
Harvey Henderson, an attorney representing one of the current trustees of the Lucas Estate, said none of the plaintiffs are “economically dependent” on a speedy trial, and that the 30 cases involving Pflueger have “amazing legal complexities.”
“Plaintiffs always want it to be the day after tomorrow,” and given the “potential economic ruin” to his client as a result of losing a civil trial, proceeding to trial without having access to Pflueger unless the motion was granted would be catastrophic, Henderson argued.
“This is an extraordinary situation.” He’s “not asking for much, only a couple of months.”
Other attorneys representing current or former Lucas trustees said their clients “face enormous exposure,” while arguing for the continuance.
David Fairbanks, representing some of the plaintiffs opposed to the motion to continue the civil case, said there would be no way that the May 2010 property-damage case could run on time if Watanabe granted the continuance motion. “There is simply no time.”
Granting the motion would jam up the judicial calendar, while seeking the motion presumes an acquittal in Pflueger’s criminal case, without any concern for how much time appeals and re-trials may take, Fairbanks said.
And there is still no guarantee that Pflueger will actually testify at the civil trial, Fairbanks argued. “The motion should be denied.”
Henderson said it would be “extremely unfair” to be asked to proceed without Pflueger’s participation. “He is a very important witness to us.”
The prospect of criminal and civil trials running concurrently “creates all kinds of monstrous problems,” Henderson said.
After Watanabe’s ruling, none of the involved attorneys had any further comment.
• Paul C. Curtis, staff writer, can be reached at 245-3681 (ext. 224) or pcurtis@kauaipubco.com
