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DMG Partner Sean Sullivan Provides Counsel to Energy Industry on Litigation Preparedness

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Sean Sullivan, 2011 president of the Propane Gas Defense Association and head of his Chicago law firm's energy practice, values documentation. As a defender of propane companies at trial, the Daley Mohan Groble attorney notes that propane litigation is often tough, and frequently human tragedy is involved. While that lamentable element cannot be avoided, assignment of culpability at trial can depend on how well a marketer documents their compliance with regulations and industry procedures.

For 25 years, Sullivan has represented utilities, industrial plant operators, and producers and marketers of petroleum products in defense of wrongful death and catastrophic personal injury cases, particularly those involving fires and explosions. He is a member of the Defense Research Institute and the Illinois Association of Defense Trial Counsel. Sullivan has been an active member of the Propane Gas Defense Association since 1992, serving on the association's board of directors prior to assuming the presidency. He is also a member of the National Fire Protection Association. Among his publications and presentations is "Can You Prove It? Why and How to Document Your Good Deeds," which was presented to the Propane Gas Defense Association.

"There is a need for propane marketers to instill good habits and procedures for recording and documenting the way in which they comply with the many regulatory requirements, industry practices, and internal procedures that apply to their work," he advises. "These include employee training, installation and service call procedures, out-of-gas procedures, and distribution of safety and warning materials. There are numerous ways to comply with those various requirements, but whatever practices are employed, there is a critical need to document what was done."

One important reason for maintaining good documentation procedures and records is so that, if an incident occurs that results in a lawsuit, the marketer will be in a position to confirm, through records, that the employees followed all required procedures and steps in dealing with the customer, he affirms.

"A jury is inherently more likely to believe the marketer's testimony that procedures were followed if there are contemporary records—created at the time the work was done—which confirm that testimony. When complete records exist, the jury is not as likely to wonder whether the marketer is remembering accurately or testifying truthfully about what was done."

There are other benefits to applying a strong documentation and record-keeping practice, he adds. First, it is a way to reinforce training for employees. In addition to being trained in what to do, requiring employees to document their actions serves as an additional reminder for them to perform all required tasks. "If they are required to document what they did, it is simply less likely they will forget or omit any step. It also serves to underscore the importance of the individual procedures they are expected to follow."

Requiring documentation also can serve to catch and correct mistakes, Sullivan observes. If a delivery person forgets to leave safety information after an installation, for example, the absence of that step in the records can be seen and the omission corrected by sending someone to that customer to deliver the materials.

To accomplish those goals, he counsels a documentation practice needs to follow a few simple steps. Matters should be documented in writing, either paper or electronic. Records should be maintained and organized consistently. The records should be reviewed for accuracy and completeness. This is critical to ensure that the procedures are being followed, that mistakes can be caught and corrected, and that if an incident occurs there will be no gaps in the records relating to that account.

"There also should be clearly assigned responsibility for creating, reviewing, and maintaining the records," he says. "This may be the most important point. If no one is sure whose job it is to create, file, or review the records, it is much more likely that gaps will occur."

"Have a system, follow it, and build in documentation," he advises. "Employees must know it's important, and that they must verify what has been completed. These steps will minimize after-the-fact accusations that someone didn't do this or didn't do that. Follow the system's procedures and document actions so you can prove you did it. That way, if your employees are ever called upon to testify at trial about what they did, it will not just be their word – the records will prove it."

Speaking as a propane defense attorney, Sullivan notes that one frequent issue in lawsuits is what warnings the marketers provided to the consumer, and how they provided the warnings. He adds that materials developed by the Propane Education and Research Council are extensive and in wide use, and that juries in recent trials have viewed the content of the PERC materials favorably. "But," he says, "the best warning materials in the world will do you no good if you can't prove to the jury's satisfaction that you actually gave them to the consumer." To do that, like everything else, you must document it.

Propane Gas Defense Association

According to Sullivan, these are the types of issues marketers can gain insight on through membership in the Propane Gas Defense Association. The PGDA is a loose affiliation of lawyers, insurance professionals and others whose jobs entail work related to defense of propane litigation. The group usually meets twice per year.

"Typically the meetings cover issues encountered at trial that are new and different," he notes, "what has recently been argued on the other side [for plaintiffs]. The agenda may include a review of the outcomes of recent trials and appellate court decisions." Other presentations may address accident investigation techniques and other developments related to propane litigation.

On occasion, PGDA members have staged partial mock trials, based on actual case transcripts, as a way of demonstrating how certain facts appear to a jury when presented through skilled direct and cross examination. Referring back to a lack of documentation on the part of the defendant, Sullivan notes that such demonstrations can "show marketers how uncomfortable you can be made when you don't have records to back up employee testimony."

Sullivan says these presentations are not made for the purpose of telling members what they must do. "Rather, it's a way of offering information on what has happened in other cases so members can decide what might work best for their company, or their clients."

As a longtime PGDA member, Sullivan says he can attest to the fact that members hold a broad spectrum of viewpoints on any given issue, and there would be no point in trying to reach consensus on one "right" answer. He adds that association membership confers contacts with others in the industry whose opinions and experiences can be called upon informally outside the meetings. Sullivan comments that veteran members have been engaged in defense of propane litigation for many years.

"Association members are active in state propane associations, serving as speakers and on panels dedicated to legal and risk management issues," he says. "Those relationships can be an invaluable resource."

Sean M. Sullivan is a partner with the Chicago law firm of Daley Mohan Groble, P.C. He can be reached at 312-422-0315 or .

-John Needham

"Documentation Empowers Legal Defense in Court" was featured in Butane-Propane News' April 2011 issue and is reprinted with permission.

View the original Butane-Propane News article (PDF)

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