WEST VIRGINIA RECORD

BECKLEY – Raleigh County Circuit Judge John Hutchison turned a trial over a flood into a parade of speculation and inflammation.

At least Judge Hutchison thinks so.

On March 15 he set aside a jury verdict holding Western Pocahontas Corporation liable for flood damage.

"The jury was exposed to irrelevant, improper and salacious evidence, which they should not have heard," he wrote. "The Plaintiffs' entire case was designed to inflame the jury ..."

Jurors heard evidence about flooding on July 8, 2001, when two to five inches of rain poured on eight counties in southern West Virginia.

Two died in Kentucky, but no one died in West Virginia, where water damaged and destroyed property.

Thousands of lawsuits followed. Plaintiffs claimed that improper activities of coal mines, timber operations and railroads made the flood worse.

The West Virginia Supreme Court of Appeals divided the suits into six watersheds and assigned two each to Hutchison, Nicholas County Circuit Judge Gary Johnson and Ohio County Circuit Judge Arthur Recht.

Hutchison held the first trial, starting last March and running through May.

In his 46-page order, he took full blame for an improper verdict.

"In his own defense, this Judge would state that the issues in this case were technically complex," he wrote, noting that only after holding trial and reviewing testimony did he understand the limitations of plaintiff experts Bruce Bell and John Morgan.

He declared their opinions inadequate. He wrote that they provided nothing more than subjective belief and unsupported speculation.

Bell and Morgan testified for attorney Scott Segal of Charleston.

Three other firms represented plaintiffs when the trial began last March. Clients of those firms settled their claims during trial.

The trial started with 31 defendants. They all settled except Western Pocahontas Corporation and an affiliate, Western Pocahontas Properties. Western Pocahontas is a timber company.

The remaining plaintiffs in Hutchison's trial all were from the Mullens and Oceana areas. Their claim was that the actions of Western Pocahontas caused runoff into Slab Fork, which then flowed into the Upper Guyandotte at Mullens.

In his order, Hutchison recognized that testimony about other defendants swayed jurors in their verdict on Western Pocahontas.

"The volume of what was once relevant and admissible evidence, subsequently rendered irrelevant by the dismissal of Defendants, created a situation where the jury was very likely overwhelmed by devastatingly prejudicial evidence," he wrote.

After jurors returned the verdict last May, Western Pocahontas moved for judgment as a matter of law or a new trial.

In his order, Hutchison conditionally granted a new trial to guard against reinstatement of the verdict by the West Virginia Supreme Court of Appeals.

If the Justices reverse him and find Bell and Morgan reliable, he wrote, he will grant Western Pocahontas a new trial.

To block a new trial, Justices would have to find that Hutchison made an error in deciding that he made errors.

As grounds for a new trial, Hutchison listed all the things that went wrong.

He wrote that the experts were not qualified by education, experience or specialized knowledge to render their opinions.

"Support for their opinions came from untested and unreliable use of scientific models which, in fact, amounted to 'junk science,'" he wrote, adding that the models required jurors to engage in speculation.

He wrote that when jurors deliberated, "... they were still carrying in their mental databases significant evidence regarding other Defendants ..."

He wrote that he should have admitted evidence of flooding on a golf course at Twin Falls State Park. He wrote that its importance was not clear when plaintiffs moved to exclude it.

He said jurors were confronted on a number of occasions with anecdotal testimony despite his rulings against it and with references to people having been killed by the flood.

Hutchison wrote that although he sustained proper objections to the comments, they encouraged the jury to resort to passion and sympathy. He also wrote that he should not have admitted a report of a task force that Gov. Bob Wise appointed because they used the same unreliable models as Bell and Morgan.

In addition, he said that defense evidence should have carried greater weight and that Western Pocahontas followed best management practices and industry standards.

He wrote that according to undisputed evidence, a timber operation that follows those practices and standards will return to its previous condition within four years.

"Despite the disturbance created by the Defendants on their real estate, any negative effects of that disturbance would be abated in a four year period," Hutchison's order said. "This Court in no way intends to impugn the integrity of the jurors who sat for nearly three months in this case, who nobly and diligently considered all the testimony and exhibits that were presented to them ..."

He wrote that they were not protected from unreliable scientific evidence, inappropriate cumulative evidence, objectionable evidence, improper anecdotal evidence and unfounded documents.

Hutchison's order compounds the misery of flood attorneys. A few weeks ago, Judge Recht dismissed claims from an entire watershed.