Stuart Calwell

BECKLEY – Attorney Stuart Calwell of Charleston tried to flirt with jurors at a trial about a flood in 2001, but he only aggravated the judge and bored the jury.

Raleigh County Circuit Judge John Hutchison scolded Calwell on April 10 for trying to influence jurors through flirting, insults, mockery and facial expressions.

He cautioned all in his court and said he would immediately and permanently remove anyone who tried to influence the jury improperly.

On the previous day of testimony, April 6, Hutchison had cautioned jurors about improper influence without singling out Calwell.

Monday morning, before bringing in the six jurors and four alternates, Hutchison addressed Calwell and made a record of his misconduct.

He said Calwell accused him of bias. "I have a bias," Hutchison said. "It is to give a fair opportunity for all sides to present their case."

Jurors filed in and soon made it plain that neither Calwell nor anyone else had generated any excitement.

Their pencils seldom moved and their expressions seldom changed. Some stared into space for long stretches.

One closed her eyes and held her head in her hand. One scribbled and erased, again and again, for five minutes. One slid so low in her seat that she nearly vanished.

At least they liked each other. They always filed in smiling, and when Hutchison called lawyers to his bench they whispered and chuckled.

They must decide if coal mines and timber harvests unreasonably changed the landscape of the Upper Guyandotte watershed in ways that made the flood more severe.

Almost five inches of rain fell in some spots on July 8, 2001. Three to four inches fell across several counties.

Rushing water destroyed and damaged homes. Standing water covered the whole business district of Mullens.

Lawsuits soon flew, with thousands of plaintiffs and hundreds of defendants.

The West Virginia Supreme Court of Appeals laid down specific trial rules, and a special panel of judges divided the litigation into three trials.

The judges agreed to hold all three trials in Beckley. They assigned Hutchison to hear the first trial.

Most defendants settled before the trial. Seven remained as the trial began.

Hutchison planned to wrap up the trial before Easter Sunday, April 16, because jurors had made plans for spring break with their children.

As April 10 crept along, that goal looked impossible.

For defendant Pioneer Fuel, the only mining company still on trial, attorney Michael Schulz called engineer Dennis Kostic as an expert witness.

Pioneer Fuel needed to counter testimony of mountaintop mining critic Jack Spadaro, who told jurors that two mountaintop mines increased the peak flow of runoff.

Kostic said he worked 36 years in the coal industry, that he helped design ditches and culverts for mines, that he held engineer licenses in West Virginia and three other states, and that he was familiar with West Virginia mine regulations.

He said Pioneer Fuel controlled sediment with "valley fill." To fill a valley, he said, trucks on the mountaintop dump rocks over the edge.

Calwell tried to undermine Kostic's credibility. He asked how many valley fills he designed. Kostic said he designed one in West Virginia and a small one in Kentucky.

Calwell asked how often the Department of Environmental Protection inspects a valley fill during construction. Kostic said they inspect quarterly.

Calwell asked how an inspector would inspect a valley fill. Kostic said he did not know.

Hutchison sent the jury out. Calwell objected to Kostic as a witness, saying he had very little experience in valley fills and could not help jurors understand the evidence.

Hutchison admitted Kostic. Jurors and Kostic returned.

Schulz asked Kostic if water cascaded down the valley fill. Kostic said no. He said it percolated through rocks as it would through coffee grounds.

It had taken all morning to present this single scrap of testimony. Hutchison declared lunch break.

After lunch Schulz asked what happened if a mine violated a department regulation. Kostic said it received a notice of violation.

Schulz asked if the department could do more if a violation presented imminent risk of harm. Kostic said it could issue a cessation order.

Schulz recited dates of four inspections in two months after the flood and asked if the department noted any violations from the inspections. Kostic said no.

Schulz asked if the mines violated any rule on mountaintop removal by failure of any pond, ditch or fill in the storm. Kostic said no.

Schulz asked how many gallons of rain fell on 1,035 acres in the watershed of a creek. Kostic said about 146 million gallons.

Schulz then sought to wipe out impressions that plaintiffs had left on jurors with black and white aerial photographs of the mountains after the flood.

Schulz displayed a plaintiff photo that appeared to show a road hugging the base of a mountain. Kostic said the road runs on an embankment above the base.

Schulz displayed a plaintiff photo that made a valley fill look vertical. Next to it he displayed a photo showing a 45 degree slope.

Schulz displayed a plaintiff photo showing apparent erosion on a valley fill. Next to it he displayed a photo showing the same fill with a smooth face.

Kostic attributed the difference to shadows.

Schulz displayed a photo that plaintiffs identified as valley fill number three. Kostic said the photo showed valley fill number one.

Schulz displayed all the photos and asked if Kostic saw any sign of mass slipping or sliding. Kostic said no.

One juror stood about half the time in apparent discomfort. Hutchison called a break and when it ended he kept the jury out. He asked if he should disqualify her.

No one thought he should. When Hutchison called for the jury she limped in with the rest and took her place.

At 3:45 p.m., Schulz finished with Kostic. Calwell rose to cross examine Kostic. At last jurors could expect drama.

Calwell asked Kostic if it was lawful to fill a valley from the bottom up rather than the top down. Kostic said, "That is a lawful way but it is dangerous."

Calwell asked if Kostic knew how to draw a valley fill, and Kostic said yes. Calwell asked if he knew how to complete one, and Kostic said yes.

Calwell said, "You know nothing about in between?" He reminded Kostic that he did not answer a question about how inspectors made their inspections.

Kostic said he supposed inspectors looked at the fill.

Calwell said, "Engineer's eye, right?"

Kostic said, "That is exactly right."

Hutchison interrupted and said a personal matter required his attention. He said he would see everyone in the morning.

The great flood trial had ended for the day.

Later in the week, Hutchison decided that the trial would not end before Easter. He gave jurors a week to enjoy spring break. The trial will resume April 24.

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