News — Coal River watershed claims dismissed
Audrey Stanton
Register-Herald Reporter
One of the major components in West Virginia’s largest mass litigation case won’t reach the trial stage.
In an opinion filed Thursday in Raleigh County Circuit Court, Ohio County Circuit Judge Arthur Recht dismissed with prejudice “each and every claim relating to the July 8, 2001, flooding asserted by each and every plaintiff within the Coal River watershed.”
Recht is one of three judges assigned by the state Supreme Court to hear or oversee a portion of the case. The other two are John A. Hutchison of Raleigh County and Gary Johnson of Nicholas County.
Recht’s decision means defendants within the Coal River watershed will not go through a trial like the one Hutchison presided over for eight weeks last spring.
Hutchison’s portion of the case concerned the Mullens and Oceana sub-watersheds of the Upper Guyandotte watershed.
During the trial, jurors heard evidence targeted at helping them answer some major questions concerning the flood of July 8, 2001, when, in less than six hours, more than 5 inches of rain fell on parts of southern West Virginia. The flood devastated areas of Wyoming, Raleigh, Fayette, Nicholas, Mercer, McDowell, Kanawha and Boone counties.
The overall case originally involved roughly 5,000 plaintiffs and 400 defendants in six watersheds. By the time it reached the trial phase, Hutchison’s portion had 31 defendants and 900 plaintiffs. But when the trial reached closing arguments, Western Pocahontas Properties and Western Pocahontas Corp. were the only remaining defendants. During the course of the trial, all of the defendants in the Oceana sub-watershed had been either dismissed on the judge's order or they had settled their case. Likewise, several other defendants had either been dismissed or settled their case. By the end, only the two remained.
And on May 2, after six hours of deliberation, the six jurors gave their answers: The timbering practices of Western Pocahontas Properties and Western Pocahontas Corp. did increase water runoff from their land on July 8, 2001; such an increase in peak runoff did cause the streams below them to overflow; and — perhaps most importantly — the company's use of land was unreasonable.
But the verdict did not mean the end of the case. It meant, simply, the plaintiffs from that sub-watershed may now proceed to the next phase of litigation, during which they will seek damages from the defendants.
The two remaining defendants from the first trial have filed standard post-trial motions, including a motion for judgment notwithstanding the verdict and a motion for a new trial. They have written briefs and argued their points. Plaintiffs have filed their opposing briefs. Hutchison is considering those motions and is actively working toward a decision on whether to deny or grant the motions.
If he denies the motions, the case concerning only the Mullens sub-watershed will move on to “phase two,” in which individual parties will seek a determination on recovering specific damages from the two defendants.
Meanwhile, the other sub-watersheds of the Upper Guyandotte are in limbo. Parties involved in that case are waiting to hear the outcome of Hutchison’s Mullens case. They have filed motions and have scheduled hearings this spring concerning what they call “RUG,” which stands for Remaining Upper Guyandotte. Pending the outcome of those hearings, a trial date could be set.
And until last week, the watersheds of the Coal River and the Upper Kanawha remained.
Recht had been hearing motions to dismiss the Coal River part of the case since September. His recent 32-page ruling concludes “the plaintiffs’ complaints, amended complaints, and more definite statements fail to state a claim upon which relief can be granted.”
The judge notes plaintiffs, according to case law, should not be allowed to engage in “fishing expeditions” when they cannot point to facts sufficient to support the allegations set forth in the complaint.
Still pending, are the same series of pre-trial steps regarding the remaining flood-devastated sub-watersheds of the Upper Guyandotte and the Upper Kanawha watershed.