West Virginia Record

CHARLESTON – Three recently filed lawsuits related to a water-contaminating chemical leak target the water company exclusively.

West Virginia American Water Company is the sole defendant in two lawsuits filed Jan. 21 and another filed Jan. 24. One complaint was filed by a dental office, the second was filed by a host of plaintiffs including restaurants, dry cleaners, fitness companies and hair stylists.

The third was filed by individuals who came in contact with the contaminated water.

All of the potential class action complaints were filed by Charleston attorneys Marvin Masters and Robert V. Berthold Jr.

Nearly 40 complaints have been filed in various state and federal courts related to the chemical spill, but these three are the only ones to name WVAWC as the sole defendant. Freedom Industries filed for bankruptcy Jan. 17.

The dental office -- Falbo & Monday -- filed its case Jan. 21 on behalf of approximately 200 dentists and dental service providers “whose offices and facilities were supplied water by West Virginia American Water Company” that was treated at its Elk River intake facility.

That facility is just more than a mile downriver from the Freedom Industries site where an estimated 10,000 gallons of crude MCHM leaked earlier this month. More than 300,000 residents in parts of nine counties were without tap water for days, and many still are wary of using the water.

Falbo and Monday, which has locations in Charleston and Hurricane, “has suffered and continues to suffer economic damages as a result of the conduct, acts and omissions of the defendant because its dental practice was shut down for several days,” the complaint states.

The plaintiff says it “additionally has been required to have specialty services clean all of their dental equipment prior to re-opening its dental facilities.

The complaint states that WVAWC had the duty to provide safe drinking water, to inspect the watershed for potential sources of contamination, to provide for monitoring of its intake to detect contamination, to provide a treatment facility to treat chemical spills, to close the intake to prevent the contamination of water, to have plans to continue to supply safe water after a chemical leak is detected, to closely monitor its water and supply, to notify its customers and the public of dangers when contamination does occur, to have contingency plans, and to provide the public with alternative sources of water when necessary.

“WVAWC did not take measures to close its intake and did not notify its customers or the public of the danger, but instead WVAWC attempted to treat the MCHM with inadequate means, methods, materials and/or facilities, and, therefore, as foreseeable, the untreated contaminated water was allowed to enter into its water system both before and after it became aware of the leak, and water continued to be disbursed into homes and businesses for several hours before the public was made aware of the danger,” the complaint states.

As a result, WVAWC “caused contaminated, toxic drinking water to be delivered to homes and businesses, and to public establishments for consumption by their customers, their families, employees, clients, customers, visitors, patients and the public,” the complaint continues.

The plaintiff says the actions of WVAWC were intentional and reckless. It says those actions harmed its business and potentially its customers and the public.

“The plaintiff and the class were caused harm, they lost income, past and future, they were annoyed and inconvenienced, both past and future, and were otherwise damaged both past and future,” the complaint states.

Falbo & Monday seeks compensatory damages, court costs, pre- and post-judgment interest, equitable and injunctive relief, punitive damages and other relief.

The other complaint filed Jan. 21 was by the following plaintiffs: restaurants AM & GH LLC dba Grano, L and G Foods Inc. dba as two Dairy Queen restaurants, Sahara Catering & Restaurant Inc., and Madelines Café Inc. dba Happy Days Café; dry cleaners Mound Cleaners Inc.; health, fitness and athletic trainers Nexus Athletic Clubs Inc., City Fitness Inc., Nautilus Fitness Center Inc., Kinetix Fitness LLC, Paul Walton Jr. dba Butch’s Gym and trainer Tabetha Peiros; beauty salons, hair stylists and barbers Bart A. Roberts and Kristi Maddox.

Their complaint lists similar damages and seeks similar compensations.

The third complaint, filed Jan. 24, lists Kristy Ord, Sherri Vance, Cambree Vance, Ann Perrine, Sandra Bowles, Jennifer Totten and William G. Jones as the named plaintiffs.

“At the time plaintiffs ingested the water, they did not know that the water was contaminated with dangerous chemicals,” their complaint states.

It also states that Ord is pregnant, and mentions subsequent warnings that pregnant women should not drink the water. Cambree Vance is the 2-year-old daughter of Sherri Vance.

They seek compensatory damages for physical injury, medical bills, cost and expense of replacing the water and the waste of water, the cost of sewer, emotional distress, humiliation, embarrassment, fear, loss of enjoyment of life, loss of income past and present, medical monitoring, annoyance and inconvenience, expenses for replacing water supply and other related living expenses as well as other damages. They also seek punitive damages, pre- and post-judgment interest, equitable and injunctive relief.

WVAWC is represented by Al Emch of Jackson Kelly PLLC.

Falbo & Monday’s case has been assigned to Circuit Judge Tod Kaufman, and the other complaints have been assigned to Circuit Judge James Stucky.

Kanawha Circuit Court case numbers: 14-C-122 (Falbo & Monday), 14-C-123 (AM & GH et al) and 14-C-161 (Ord et al)