Plaintiffs ask Thornsbury to step aside
Justin Anderson Jul. 20, 2009, 1:30pm
WILLIAMSON – Plaintiffs in a huge lawsuit accusing Massey Energy of poisoning drinking water with coal slurry want the presiding judge to step aside from the case.
The plaintiffs in the case styled Sherry Lynn Stanley et al. v. Rawl Sales and Processing Company and Massey Energy filed the motion Friday asking Mingo Circuit Judge Michael Thornsbury to step down in the case.
According to the motion, drafted by lawyers Kevin Thompson and Van Bunch, Thornsbury must step aside because of his friendship with Massey chief Don Blankenship and primarily because Thornsbury appointed a business partner, Dr. C. Donovan Beckett, as administrator of a multi-million dollar medical monitoring trust set up for the plaintiffs.
Beckett also served as campaign manager for Thornsbury's last election. According to the motion, Beckett worked with the Jackson Kelly law firm -– which represents Massey in the Stanley case -– to set up a fundraiser for Thornsbury.
Beckett is, additionally, a contractor for Massey, the motion says. Beckett sees Massey employees for a $5 co-pay through Comprehensive Health Solutions, the motion says.
The judge and Beckett are partners in Williamson Renaissance Development and are debtors on a $1.6 million deed of trust related to the business, the plaintiffs say.
While Beckett will serve as administrator of the medical monitoring fund, Community Trust Bank will serve as trustee. The bank holds the $1.6 million deed of trust, the motion says.
The plaintiffs say that initial documents related to the medical monitoring trust allowed for a set fee awarded to the administrator and the trustee. But later documents prepared by Jackson Kelly, according to the motion, allow for open-ended fees that are payable pursuant to a fee schedule developed by each.
"Neither Dr. Beckett nor Community Trust Bank are known to possess any experience with the operation of a medical monitoring trust and likely have no such set schedule," the motion says.
The open-ended fee arrangement has the potential to steer potentially large fees to Beckett, the motion says.
The plaintiffs go on to accuse Thornsbury of working behind the scenes to get Beckett the appointment as administrator of the trust fund.
Beckett was appointed during a hearing on June 17. The motion says that when Jackson Kelly lawyers initially circulated the proposed order and trust document, the space where the administrator's name would go was left blank.
On the night before the hearing, the plaintiffs say that Jackson Kelly lawyer Erin Stankewicz e-mailed modified documents to the involved lawyers that listed Beckett as administrator and Community Trust as trustee.
Neither Thornsbury nor court staff were included in the e-mail, the motion says.
The plaintiffs say the Jackson Kelly lawyers never mentioned that they had an administrator and trustee in mind prior to this e-mail.
Nevertheless, Thornsbury, at the June 17 hearing, said he'd already talked about the matter with Beckett, though he didn't mention their business relationship, the plaintiffs say.
"Clearly, Jackson Kelly lawyers had to be in communication with Judge Thornsbury before the hearing for the lawyers to identify who would be the administrator and for Judge Thornsbury to have talked with Dr. Beckett prior to his appointment," the motion says.
The plaintiffs say the Jackson Kelly lawyers never mentioned that they had an administrator and trustee in mind prior to
As for Blankenship, the plaintiffs say he and the judge were spotted lunching together at a restaurant called "Starters," which is located in one of the judge's and Beckett's properties.
The alleged lunch occurred after the parties had mediated, but before an April 30 settlement conference where a previous agreement "foundered."
"Were this simply an isolated event in an otherwise error free proceeding, plaintiffs would not necessarily complain," the motion says. "But it is not. Viewed in the context of the other instances of bias and cronyism, it is clear that Judge Thornsbury lacks awareness of Canon 2(A): 'A judge shall … avoid impropriety and the appearance of impropriety in all the judge's activities."
The motion alleges that Thornsbury sought to protect Blankenship from being subjected to discovery in the case by limiting what the plaintiffs could discover about Blankenship's knowledge of the coal slurry injection.
In addition, the plaintiffs say that they had repeatedly requested a transcript of the April 30 settlement proceedings, but were given the run-around by the judge's staff and didn't receive the transcript.
However, at the June 17 hearing where the terms of the settlement were to be placed on the record, the motion says that Massey's lawyers quoted from the transcript. The plaintiffs say they did not get a copy until five days after the hearing.
In addition to Thornsbury's recusal, the plaintiffs also ask that West Virginia Supreme Court Chief Justice Brent Benjamin recuse himself from considering the motion.
Benjamin was the target of an appeal to the U.S. Supreme Court filed by a Southern West Virginia coal company, Harman Mining.
The company successfully appealed Benjamin's participation in voting twice to overturn a $50 million verdict against Massey.
In a 5-4 ruling last month, the U.S. Supreme Court ruled that Benjamin should have stepped down because Blankenship spent about $3 million on an advertising campaign aimed at Benjamin's opponent in the 2004 general election.
Mingo Circuit Court case number: 08-C-69