CHARLESTON - As three circuit judges ascended to the big chairs of the West Virginia Supreme Court of Appeals on April 16, Justice Joseph Albright announced, "Obviously there was a midnight coup."

"The circuit judges have taken over," he said.

Russell Clawges of Monongalia County, Darrell Pratt of Wayne County and O. C. "Hobby" Spaulding of Putnam County joined Albright to hear two appeals in a mass of lawsuits over a flood that hit southern West Virginia in 2001.

The circuit judges substituted for Chief Justice Spike Maynard and Justices Brent Benjamin and Robin Davis, who disqualified themselves. Justice Larry Starcher missed the session but will participate in the decision. He was attending a judicial conference in San Diego.

Albright appointed himself "acting acting acting chief justice."
He carried a heavy load in the arguments, asking about as many questions as the three temporary judges together.

In the first appeal, Stuart Calwell of Charleston sought to reverse Ohio Circuit Judge Arthur Recht's decision to throw out every claim in the Coal River watershed.

Recht handles a third of the flood litigation by special Supreme Court appointment.

Albright said plaintiffs had to distinguish specific allegations against each defendant.

"We did that," Calwell said.

"Apparently not sufficiently to get by Judge Recht," Albright said.

Calwell said defendants did a brilliant job of obfuscating. He congratulated opposing counsel Al Emch of Charleston.

Calwell said Recht asked for core information. "We don't know what core information is," he said.

Until plaintiffs gain access to discovery, he said, evidence would be difficult to bring forward. He said discovery works that way in a car wreck.

Clawges said, "It works in a car wreck because you know who is involved."

Calwell said timbering disturbs the surface. "It's common knowledge," he said. "It's an undeniable fact."

Emch asked the Court if speculative complaints were sufficient to survive a motion to dismiss. He said Recht applied "proper and refined reasoning."

He said the case involved thousands of plaintiffs and scores of defendants. He said Recht wanted Calwell to line up plaintiffs and defendants.

"We want each plaintiff to say what a defendant did to lift them out of the grand group," Emch said. "You need something specific."

He said, "You really can't prove that which you are not able to plead."

Pratt said, "Tell me how you justify dismissing at this stage."

Emch said, "Plaintiffs did not respond. They don't know what their case is about."

In rebuttal Calwell said, "They chose to disturb this land on a massive scale above thousands of people."

Albright asked if Recht was reasonable in asking what they alleged. Calwell said, "We told him but it didn't satisfy him."

Calwell said, "They did all engage in the same conduct."

In the second appeal, Scott Segal of Charleston sought to restore a verdict that jurors returned against Western Pocahontas Properties in 2006.

Raleigh County Circuit Judge John Hutchison threw out the verdict last year, admitting that he allowed sensational and inflammatory testimony from plaintiff experts.

Segal told the Court the timber industry argues that it doesn't have to consider what happens downstream.

He said, "Every reasonable inference is in favor of this jury."

For Western Pocahontas Properties, Richard Bolen of Huntington said, "There was no clear cutting."

He said timber on the property has increased from 65 million board feet to 101 million board feet while Western Pocahontas owned it.

He said plaintiffs blame Western Pocahontas for all disturbances on Slab Fork. "That's not true," he said. "There are all kinds of disturbances on Slab Fork. They didn't choose to sue all those land owners."

He said plaintiff experts lacked experience, education and knowledge of timber.

Albright said, "Isn't that a matter of credibility? Couldn't you tear their case apart?"

Bolen tried to do just that, displaying plaintiff's graphs and criticizing their models.

"This was dartboard material," he said.

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