West Virginia Record

Monday, March 30, 2020

At least eight class actions filed over West Virginia chemical spill

By Kyla Asbury | Jan 14, 2014


CHARLESTON - At least eight class action lawsuits have been filed in Kanawha Circuit Court against Freedom Industries for a chemical leak in West Virginia that caused more than 300,000 residents to go without water for days.

West Virginia-American Water Company is also named as a defendant in four of the eight suits.

On Jan. 11, James C. Peterson, R. Edison Hill and Aaron L. Harrah of Hill, Peterson, Carper, Bee & Deitzler PLLC; Anthony J. Majestero of Powell & Majestro PLLC; and Timothy C. Bailey and Lee Javins of Bucci Bailey & Javins LC filed an expedited motion to refer the cases to the mass litigation panel.

On Jan. 10, at least eight to 10 lawsuits were filed in Kanawha Circuit Court concerning similar common questions of law or fact concerning the chemical leak and water contamination by the defendants. It is reasonably expected that many more will be filed, the motion states.

"The scale of the effects of this catastrophic event, including the potentially 300,000 effected water customers and potential class claimants, necessitate referral of these cases to the Mass Litigation Panel," the motion states.

Only the Mass Litigation Panel can efficiently handle claims of this span and breadth, according to the motion.

Harry F. Bell Jr. of the Bell Law Firm said the water contamination incident is a mess that comes down to responsibility and accountability.

"This was a preventable incident," Bell said. "This comes down to businesses and governmental agencies not doing their job, which has caused hospitalizations, personal injuries and personal inconveniences that tug at you because so many are involved."

Bell said water is exceedingly important and in the middle of cold and flu season, people are not even able to wash their hands.

"So many people are affected and many of them can't just take off and go somewhere until it's over," Bell said. "The people of West Virginia are mad and angry and they deserve answers."

Bell said the government officials should have known what was upstream of its facility, should have issued a rationing order and closed off its intakes, then opened them back up once the chemical leak had passed, but this did not happen.

"This is a real problem," Bell said. "This is Charleston, W.Va, not a third-world country. They didn't plan appropriately for this and everything has been shut down because of it."

Bell said they have filed preservation orders and have a significant amount of resources to get answers in this case.

"People deserve to know; they deserve to get answers," Bell said.

EJ&K Enterprises LLC and South Hills Market & Cafe; Scott Miller and Bar 101 LLC; Adelphia Inc.; Suzette L. Conley; Susan K. Dyer; Kanawha Gourmet Sandwiches LLC; Laura Gandee; and 5 Corners Cafe LLC and Justin A. Amos, the owner of the Vintage Barber Shop, filed the lawsuits on Jan. 10 in Kanawha Circuit Court after a Do Not Use order was enforced across parts of nine counties in West Virginia.

On Jan. 9, Freedom Industries negligently and recklessly caused a chemical leak at its Etowah River Terminal plant, which resulted in a chemical spill into the Elk River, according to the suits.

The chemical that was discharged into the Elk River was a foaming agent used in the coal preparation process.

As a result of the chemical spill, West Virginia declared a state of emergency and customers of West Virginia-American Water were ordered not to drink, bathe, cook or wash clothes using tap water. The plaintiffs suffered a loss of the use of their water since Jan. 9, the complaint says.

Freedom Industries had a duty to the plaintiffs to use reasonable care, to properly run and operate its Etowah River Terminal plant and to not allow chemicals to be leaked into the Elk River, according to the suits.

The plaintiffs said Freedom negligently and recklessly breached its duty by causing the chemical leak and permitting and/or allowing the unlawful release of the chemical into the Elk River.

The class consists of thousands of members and is so numerous that joinder of all class members is impractical, according to the suits.

The plaintiffs are seeking compensatory and punitive damages.

EJ&K Enterprises and South Hills Market & Cafe LLC are being represented by Jonathan R. Mani, Damon L. Ellis and Bernard E. Layne III of Mani Ellis & Layne PLLC; and John E. Sutter and Roger Decanio of the Sutter Law Firm PLLC.

Miller and Bar 101 are being represented by Peterson, Hill, Harrah, Majestero, Powell, Bailey and Javins.

Adelphia is being represented by J. Timothy DiPiero, Lonnie C. Simmons, Sean P. McGinley and Robert M. Bastress III of DiTrapano, Barrett, DiPiero, McGinley & Simmons PLLC and Charles R. "Rusty" Webb of the Webb Law Firm PLLC.

Conley is being represented by Robert B. Warner, Lynnette Simon Marshall and Tammy Bowles Raines of Warner Law Offices PLLC; and Robert P. Fitzsimmons, Clayton J. Fitzsimmons and Brent E. Wear of Fitzsimmons Law Firm PLLC.

Dyer and Kanawha Gourmet Sandwiches are being represented by Harry F. Bell Jr. and Jonathan W. Price of the Bell Law Firm PLLC; Jerrold S. Parker of Parker Waichman LP; and Richard J. Arsenault of Neblett, Beard & Arsenault.

Gandee, 5 Corners Cafe and Amos are being represented by Kathy A. Brown of Kathy Brown Law; and F. Jerome Tapley, Jon Collins Conlin and Hirlye R. "Ryan" Lutz III of Cory Watson Crowder & DeGaris PC.

The cases have been assigned to Circuit Judges James C. Stucky, Carrie Webster, Jennifer Bailey and Charles E. King

Kanawha Circuit Court case numbers: 14-C-46, 14-C-47, 14-C-48, 14-C-51, 14-C-53, 14-C-55, 14-C-60, 14-C-61

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