Flood victims' victory sets up second trial

BECKLEY – Flood victims won a jury verdict after a seven-week trial, but it will take another trial to identify the victims and decide who owes them what.

Jurors who ruled for plaintiffs May 2 knew nothing about names or claims of individual plaintiffs, because the trial covered liability only.

Jurors in a second trial will calculate the damages that plaintiffs suffered at Mullens and Oceana on July 8, 2001, when four inches of rain fell and streams overflowed.

No one knows exactly whose damages the second jury will consider. Attorneys must scratch many plaintiffs from the roster they filed when trial began.

Most defendants settled out during trial, taking plaintiffs out with them.

The last of many coal mine owners on trial, Pioneer Fuel, settled out at the end.

That left two defendants, timberland owners Western Pocahontas Properties and Western Pocahontas Corporation. Jurors assigned them liability.

Although the verdict fell entirely on two companies, they will not necessarily pay all the damages the second jury might award.

They can try to transfer liability to contractors on their properties, according to Vickie Hylton, law clerk to Raleigh County Circuit Judge John Hutchison.

Hylton said the damages trial would cover contracts between defendants and third parties as well as damage claims between plaintiffs and defendants.

She said White Oak Lumber, a defendant Hutchison dismissed because plaintiffs had no direct claim against it, might return to the case in the damages trial.

She said Hutchison did not set a date for the damages trial. She said he would sign a scheduling order within a month.

Two pending trials will examine the 2001 flood in bigger watersheds.

Thousands sued after the flood, claiming that coal mines, timber operations, railroads and others changed the land in ways that made the flood worse.

The West Virginia Supreme Court of Appeals gathered the cases for referral to a special flood litigation panel.

For the panel the Justices chose Hutchison and circuit judges Arthur Recht of Ohio County and Gary Johnson of Nicholas County.

The judges split the load and agreed to hold all three trials at Beckley.

Hutchison took the first trial, starting March 14. Attorneys chose ten jurors, eight women and two men.

Six jurors would reach a verdict, with four alternates. Not until the end would jurors learn whether they belonged to the group responsible for the verdict.

Hutchison planned to finish before Easter Sunday, April 16, so jurors could take spring break with their children. His plan did not hold up.

Plaintiffs stretched testimony of five experts into April. Defense attorneys developed their experts just as slowly.

As Easter approached, Hutchison abandoned his schedule. He told jurors to enjoy spring break and return April 24.

When trial resumed, Pioneer Fuel president Mark Weaver testified that his company did nothing that would have contributed to damage.

"There was no breach," he said. "Everything held its integrity."

Beckley Herald-Register reporter Audrey Stanton wrote April 24 that settlements and dismissals had cut the number of defense attorneys from 31 to four.

The jury also had shrunk. Hutchison allowed two jurors to withdraw.

Jurors appeared pleasantly surprised when the defense rested and almost gleeful when plaintiffs said they would call no rebuttal witnesses, Stanton wrote.

She wrote that jurors saw hundreds of exhibits, a large rock and a giant slab of wood cut from a white oak tree.

In a May 1 summary of closing arguments she quoted plaintiff attorney Stuart Calwell: "Over the years Western Pocahontas began to upset the balance of the mountain."

She quoted plaintiff attorney Scott Segal: "They knew they would hit this tipping point. They knew that and they didn't do anything about it."

She quoted Western Pocahontas attorney Dave Goddard: "We are good neighbors. We do what the government wants us to do and we do it well."

She quoted plaintiff attorney Sam Hrko: "No reasonable company would not, number one, try to figure out how much water they are going to put on their neighbors and number two, try to figure out a way to stop it."

Jurors began deliberation Tuesday morning, May 2. They reached a verdict at 3:30 p.m.