WHEELING – By e-mail, attorney Stuart Calwell of Charleston barely beat a deadline to explain his theories for a trial over a flood that soaked southern West Virginia five years ago.
Ohio County Circuit Judge Arthur Recht received some of Calwell's theories on paper and some by e-mail on Aug. 18, a deadline Recht had set.
Calwell promised to mail copies of what he sent by e-mail.
Recht plans to conduct two trials at the Raleigh County courthouse in Beckley. The first would establish liability and the second would determine damages.
The flood killed no one but it damaged properties in seven counties.
The water had barely receded when attorneys started suing coal mines, railroads and timber companies for changing the landscape in ways that made the flood worse.
The West Virginia Supreme Court of Appeals consolidated thousands of claims and split them into three watersheds.
The Justices chose Recht and circuit judges John Hutchison of Raleigh County and Gary Johnson of Nicholas County to conduct trials at Beckley.
Hutchison held the first trial this spring. As it progressed plaintiffs settled with every defendant but one, Western Pocahontas.
Jurors found Western Pocahontas defendant liable. Hutchison now prepares for trial with another jury to determine damages.
Recht's trials will cover the Coal River watershed. Earlier this year he set the liability trial Sept. 5, but that fell through.
In an Aug. 17 interview Recht said that in June he told plaintiff attorneys to formulate their theory of liability against each defendant.
He said, "That was not forthcoming so I said the defendants should file dispositive motions, basically motions to dismiss."
Defense motions arrived on time, Recht said, but plaintiff responses did not.
He said he set an Aug. 16 deadline, and on that date plaintiffs asked for more time. He gave them two more days.
At that point, he said, all parties agreed they could not start trial Sept. 5. He vacated the order that set the date, and as of Aug. 17 he had not reset it.
Defendants will respond to Calwell's theories Sept. 8, Recht said.
He said that after reading the briefs, he would either hold a hearing or issue an order based solely on the briefs.