WEST VIRGINIA RECORD

CHARLESTON – Two Justices of the West Virginia Supreme Court of Appeals, ruling as a majority after two of their colleagues dropped out, flashed a green light May 11 for a series of trials over a flood that struck southern West Virginia in 2001.

Justices Larry Starcher and Joseph Albright denied a defense petition that would have bounced 1,853 plaintiffs and 31 defendants out of the case.

Justice Spike Maynard would have granted the petition.

Chief Justice Robin Davis disqualified herself, and Justice Brent Benjamin did not participate. The Court decision did not give reasons. But Davis faced an obvious conflict because her husband, Scott Segal, represents some flood plaintiffs.

Raleigh County Circuit Judge John Hutchison concluded the first trial in April at the courthouse in Beckley. Jurors found that unreasonable land use by two timberland owners made the flood worse.

At a second trial a new jury will identify plaintiffs that the timberland owners harmed. The jury will award damages.

The trial began with dozens of defendants. All but two defendants settled the claims of plaintiffs during the trial.

Circuit Judges Gary Johnson of Nicholas County and Arthur Recht of Ohio County will conduct similar trials at Beckley over claims from other areas.

The flood followed a July 8 storm that dumped three to four inches of rain, with five inches pouring on some spots.

No one died in West Virginia, but water damaged properties in seven counties.

Four days later, Wyoming County resident Gary Arnold filed a class action claim that Bluestone Coal changed the landscape in ways that made the flood worse.

Lawsuits followed in Boone, Fayette, Kanawha, McDowell, Mercer and Raleigh counties. Attorneys in most cases proposed class actions.

Ten months after the flood the Supreme Court of Appeals picked Hutchison, Johnson and Recht to manage all the litigation.

When West Virginia's two year statute of limitations ran out in 2003, eight law firms had filed 56 suits with 2,400 plaintiffs and 181 defendants.

At a hearing last June, plaintiffs moved to dismiss their class action allegations. They also moved to add new plaintiffs and defendants. Hutchison granted both motions.

Plaintiff law firms filed six amended complaints that introduced 1,853 new plaintiffs and 31 new defendants.

Defense attorneys asked Hutchison to dismiss claims of the new plaintiffs on grounds that the statute of limitations had expired.

Plaintiff attorneys answered that the statute of limitations did not run at all while they pursued class actions for four years. They argued that the statute started running last June, when Hutchison dismissed the class action claims.

Hutchison on Jan. 11 denied the motion to dismiss the new plaintiffs and defendants.

Defendants petitioned the Supreme Court of Appeals Feb. 22 for a writ of prohibition that would keep Hutchison from carrying out his order.

The petition stated that the new plaintiffs disregarded rules and law, "sleeping on their rights to join this litigation."

It stated that, "…class allegations were a sham filed for the improper purpose of attempting (or hoping) to circumvent the statute of limitations."

It stated that according to Hutchison's order, plaintiffs could join the suit through June 2007.

It stated that, "…it is logically impossible for the New Defendants not to be prejudiced when they are being added as parties to a case that is set to go to trial in fewer than two months when the case has been pending for almost five years."

The Supreme Court of Appeals received plaintiff responses in March and April from the Calwell Practice and James F. Humphreys and Associates, both of Charleston.

The Supreme Court of Appeals decision offered no analysis for refusing the writ of prohibition.