The ground had barely thawed and electricity was still being restored to millions of Texas homes last February when lawyers rushed to file lawsuits against energy companies and their regulators seeking billions of dollars for hundreds of businesses, individuals and family estates that suffered damages resulting from Winter Storm Uri.
For 11 months, those wrongful-death, personal injury and property damage lawsuits – nearly all of them consolidated before one multidistrict litigation judge in Houston – edged along at a snail’s pace. Hardly any court hearings were conducted. No witnesses were deposed. Arguments over substantive points of law did not happen. Settlement discussions never took place.
Now, as the one-year anniversary of Winter Storm Uri approaches, those same lawyers suddenly find themselves in the midst of a make-or-break two months that could determine the legitimacy and survival of their lawsuits. Those suits seek billions of dollars in damages.
At the instruction of a judge six weeks ago, plaintiffs’ attorneys in scores and scores of the lawsuits spent the past two weeks filing amended complaints that updated their causes of action, added dozens of corporations as defendants and presented new theories about what went wrong between Feb. 13 and Feb. 17 of last year, when temperatures plunged to zero or below and the power went out across the state.
The primary defendants in most of the initial lawsuits filed last February, March and April were the Electric Reliability Council of Texas and the large power-generating and -delivery companies, such as CenterPoint Energy, TXU Energy, Reliant and NRG Energy.
The amended complaints add the power providers’ parent companies, subsidiaries and business partners, such as Vistra, Duke Energy, NextEra and Talen Energy.
Judge Sylvia Matthews, who overseeing the Winter Storm Uri MDL, has given those same lawyers until Feb. 28 to select five representative cases from the 174 lawsuits brought by the more than 400 plaintiffs to be so-called test cases.
“Under Texas statute, multidistrict litigation starts slow for the first year and then picks up speed in the second year,” said Mikal Watts, a Houston lawyer who represents 65 people in Winter Storm Uri wrongful-death cases. “I have no idea how the five representative cases will be selected, but the judge will use those five to first address all the substantive pleadings and defenses.
“By all accounts, this is a judge who wants these cases to move forward and doesn’t allow grass to grow under her feet,” Watts said.
Larry Taylor, a lawyer with the Cochran Firm in Houston, said Judge Matthews is determined to “get the cases moving forward” and to “develop a clean record.”
“These kinds of cases take a lot of time to start moving forward, but the litigation is starting to move forward at a faster pace,” Taylor said. “Keep in mind, there is going to be millions of pages of documents to go through once discovery begins.”
New cases are filed almost daily. During the past two weeks, lawyers representing businesses and individuals have filed lawsuits against insurance companies – including USAA Casualty, State National, Allied Trust, AmGUARD, American Mercury Lloyds and AGCS Marine – for not adequately covering the property damages during Winter Storm Uri.
Lawyers involved in the Winter Storm Uri litigation estimate that another 100 or so related lawsuits have been filed in various state courts across Texas that have not been consolidated into the multidistrict litigation.
Many more are expected to be filed. Watts said he represents about 6,000 businesses and individuals that will file lawsuits before the statute of limitations expires in February 2023.
“Hundreds and hundreds of personal-injury and property-damage cases have yet to be filed,” said Greg Cox, a partner with the Mostyn Law firm in Houston. “We know a lot more today than we did 11 months ago. We now have the various government reports that have shed light on the chain reactions that took place that led to the disaster.”
Not all the legal disputes are part of the multidistrict litigation.
For example, nearly all of the energy companies that are defendants in the wrongful-death, personal-injury and property lawsuits are also battling each other and ERCOT in different courts over issues such as excessive pricing, breach of contract and unmet financial obligations.
“Lawyers on both sides agree that the financial ramifications of Winter Storm Uri caused the biggest transfer of wealth in Texas history,” said Houston lawyer Derek Potts, who is involved in several of the pending lawsuits. “The question is, ‘Was it legal?’”
“Actual discovery has not even started, and that is when we will pinpoint what links in the chain are to be held responsible,” Potts said. “The pipeline companies, for example, reaped a tremendous windfall from Winter Storm Uri and the outrageous prices. Is that legal?”