A series of lawsuits over mining and timbering impacts on July 2001 floods in West Virginia are back before the state Supreme Court, in a complicated trio of cases about how the state handles mass-party litigation.
A series of lawsuits over mining and timbering impacts on July 2001 floods in West Virginia are back before the state Supreme Court, in a complicated trio of cases about how the state handles mass-party litigation.
Thousands of residents are challenging two circuit court orders that threw out one jury verdict and dismissed another case before it got to trial.
In one appeal, Charleston lawyer Stuart Calwell says Circuit Judge Arthur Recht wrongly dismissed flood lawsuits in the Coal River watershed in January 2007, before residents got to collect evidence to prove their case.
And in the other two appeals, Calwell and Charleston lawyer Scott Segal both challenge Circuit Judge John Hutchison's decision in March 2007 to throw out a jury verdict in favor of residents in part of the Guyandotte River watershed.
The state Supreme Court heard arguments in the appeals Wednesday.
Calwell told justices that if they allow Recht's decision to stand, they will be "setting our entire system of civil procedure on its ear."
In civil lawsuits, plaintiffs typically have to prove that they have asserted some proper legal claim, and then they get to collect evidence from defendants to prove that claim.
But Calwell said Recht - at the urging of coal, timber and land company lawyers - was forcing his clients to prove intricate details of their case before they could seek documents and conduct interviews of defense witnesses.
Al Emch, a lawyer for the companies, argued that the standard for continuing a case is, or at least should be, higher for mass litigation involving hundreds or thousands of parties.
"We want to know, what did they do that is liability-producing?" Emch said. "You have to have something specific."
Calwell argued his clients had specific allegations. His cases alleged that mining and timber, conducted on a large scale in Southern West Virginia, caused land disturbance that made the July 2001 flooding more likely and more damaging, and Calwell said the companies that were sued operated mines or logging jobs, or owned land, upstream from the residents whose property was damaged in the floods.
Under a December 2004 state Supreme Court ruling Calwell said, those conditions were enough for his clients to pursue their lawsuits on to trial.
A series of lawsuits over mining and timbering impacts on July 2001 floods in West Virginia are back before the state Supreme Court, in a complicated trio of cases about how the state handles mass-party litigation.
Thousands of residents are challenging two circuit court orders that threw out one jury verdict and dismissed another case before it got to trial.
In one appeal, Charleston lawyer Stuart Calwell says Circuit Judge Arthur Recht wrongly dismissed flood lawsuits in the Coal River watershed in January 2007, before residents got to collect evidence to prove their case.
And in the other two appeals, Calwell and Charleston lawyer Scott Segal both challenge Circuit Judge John Hutchison's decision in March 2007 to throw out a jury verdict in favor of residents in part of the Guyandotte River watershed.
The state Supreme Court heard arguments in the appeals Wednesday.
Calwell told justices that if they allow Recht's decision to stand, they will be "setting our entire system of civil procedure on its ear."
In civil lawsuits, plaintiffs typically have to prove that they have asserted some proper legal claim, and then they get to collect evidence from defendants to prove that claim.
But Calwell said Recht - at the urging of coal, timber and land company lawyers - was forcing his clients to prove intricate details of their case before they could seek documents and conduct interviews of defense witnesses.
Al Emch, a lawyer for the companies, argued that the standard for continuing a case is, or at least should be, higher for mass litigation involving hundreds or thousands of parties.
"We want to know, what did they do that is liability-producing?" Emch said. "You have to have something specific."
Calwell argued his clients had specific allegations. His cases alleged that mining and timber, conducted on a large scale in Southern West Virginia, caused land disturbance that made the July 2001 flooding more likely and more damaging, and Calwell said the companies that were sued operated mines or logging jobs, or owned land, upstream from the residents whose property was damaged in the floods.
Under a December 2004 state Supreme Court ruling Calwell said, those conditions were enough for his clients to pursue their lawsuits on to trial.
In the Guyandotte case, that's exactly what happened.
Hutchison oversaw a trial in early 2006 that concerned flooding in two sub-watersheds. Jurors found mining and timbering increased peak storm flows and damaged residents' property.
That ruling could have set the stage for a later trial concerning specific damages to residents.
But about a year after trial, Hutchison threw out the jury verdict.
The judge said he came to understand only after the trial that he had allowed improper evidence to be considered and unqualified experts to testify.
Segal is appealing that decision on behalf of a small group of 60 residents and small business owners. Calwell and several other lawyers represent a larger number of residents who are also appealing Hutchison's ruling.
While the court considers the appeals cases involving other residents of the larger Guyandotte watershed, as well as those in the Tug River watershed, are essentially on hold.
Thousands of residents in seven counties sued land companies, coal operators and timber firms. They blamed strip mining and logging for damage to homes and property from the 2001 floods.
Flood victims alleged mining and logging "caused natural surface waters resulting from the rainfall ... to be diverted and delivered in an unnatural way and in incomprehensible amounts down the mountains, hills and valleys ... destroying the lives and property" of residents.
Industry lawyers responded that the flooding was caused by heavy rainfall, and "clearly, the rainfall ... was an act of God, as that term is used in the law."
Legal briefs filed in the appeals are available online at http://www.state.wv.us/wvsca/calendar/april16_08ad.htm.
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
