An army of lawyers converged on Honolulu’s federal court Wednesday to argue over a question that will have a major impact on lawsuits related to the Maui wildfires that destroyed much of Lahaina in August.

The question: Were the fires more like Hurricane Katrina, which devastated much of the New Orleans metro area, or a Rhode Island nightclub fire?

The answer could determine whether dozens of lawsuits filed against Hawaiian Electric Industries, the state of Hawaii and other defendants remain in federal court, or whether U.S. District Court Judge Jill Otake will send the cases back to state court where they were filed. 

More than 50 lawyers crowded into Otake’s courtroom for a nearly two-hour hearing, representing parties like HEI, Spectrum, Hawaiian Telcom, Maui County, Kamehameha Schools and the state, as well as numerous plaintiffs who lost their lives, homes and businesses in the fires. 

The hearing turned on the question of whether the federal court actually had jurisdiction to hear dozens of cases that lawyers for Hawaiian Electric, Spectrum and Kamehameha Schools have moved from Maui state court to federal court in Honolulu.

Federal courts generally have limited jurisdiction, with the power only to hear cases involving the U.S. Constitution, federal laws, treaties and disputes between states. Federal courts can also hear so-called “diversity” cases where the opposing parties are all from different states and the amount in controversy exceeds $75,000. Certain statutes expand the jurisdiction of federal courts in some instances.

But all other matters, including most injury and wrongful death tort lawsuits, fall under the jurisdiction of state courts.

In Maui wildfire cases, lawyers for some defendants have invoked a federal statute that gives federal courts jurisdiction over certain cases. Called the The Multiparty, Multiforum Trial Jurisdiction Act of 2002, the law says the federal court may have jurisdiction in cases arising out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location” as long as some other criteria are met.

As a result, considerable debate on Wednesday focused on whether Lahaina was a “discrete location.” 

While Congress didn’t define “discrete location,” federal courts have provided some guidance. A deadly fire that destroyed a nightclub in Rhode Island in 2003, for instance, was found to have been a “discrete location.” In another case, a court found the New Orleans metro area was not a discrete location, saying “the proposition that the metro New Orleans area constitutes a ‘discrete location,’ is ‘untenable and would effectively deprive the Louisiana state courts of jurisdiction over any dispute related to Hurricane Katrina.’”

The bulk of Wednesday’s arguments were made by plaintiffs’ attorney Jesse Creed, a Los Angeles lawyer also licensed in Hawaii, and Hawaiian Electric Industries lawyer Brad Brian, of the California firm Munger Tolles & Olson.

Although Otake showed few signs of favoring one side or the other during their oral arguments, the judge at one point seemed to question the idea that a town like Lahaina could be considered a “discrete location” under the statute when she asked Brian where he would say he was at that moment. 

“I would probably say Honolulu,” Brian said.

Otake pushed for a more precise answer, noting that the statute says “’at’ a discrete location.”

In response, Brian said, “I would say I’m ‘at’ Honolulu.”

Creed later shot back that Brian’s answer showed that a place like Honolulu or Lahaina simply wasn’t the sort of place envisioned by Congress’s term “at a discrete location.”

“No one says, ‘I’m at Honolulu,’” Creed says. “You say you are ‘at the courthouse.’”

Still, Creed faced his own share of confounding questions. Otake tried to get Creed to say how big a “discrete location” could be, asking at one point, “What is the large end of a discrete location?” 

Creed said it depended on context.

‘A Big Gap Between Lahaina And New Orleans’

In general, Creed said during his argument, a plane crash, train wreck or hotel fire would be a discrete location under the statute. In addition, he said, a building that caught fire from falling debris from a plane crash would be a discrete location. But he said a burn zone encompassing a hotel where a fired started plus an adjacent property to which the fire spread would not be a discrete location.

In addition, Otake at one point also indicated she wasn’t convinced Lahaina was completely analogous to the New Orleans metro area, saying, “There’s a big gap between Lahaina and New Orleans.”

Other arguments on Wednesday turned on a separate set of cases: class action lawsuits filed in federal court under the “Class Action Fairness Act.” The law makes federal courts the primary venue for class action litigation. But the state’s lawyer, Michael Lam, argued the 11th Amendment to the Constitution and the doctrine of sovereign immunity prevented the state from being hauled into federal court against its will.

Otake seemed uncomfortable with the idea of remanding only the state’s class action to state court. That would mean similar cases taking place in multiple venues.

Creed after the hearing accused the utilities of removing the cases to federal court as a stalling tactic, wasting money on legal fees. Hawaiian Electric Industries alone had spent $34.9 million on legal fees related to the fire between Aug. 8 and the end of 2023, the company reported in February.

“These are wealthy corporations who are trying to drag victims of the negligence from Maui court to Honolulu,” he said.

Sending the cases back to Maui, he said, “is the right thing to do under the law and the right thing to do under any sense of justice.”

Otake indicated she will weigh in on the remand requests by Monday, either with an order deciding the matter or a request for more briefs.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation.