Who's suing who in flood trial?

By Steve Korris | Oct 19, 2006

BECKLEY – Five years after hundreds of residents in the Coal River watershed sued dozens of businesses over damage from a flood, defense attorneys do not know which residents sued which businesses.

BECKLEY – Five years after hundreds of residents in the Coal River watershed sued dozens of businesses over damage from a flood, defense attorneys do not know which residents sued which businesses.

Plaintiffs responded in August to a court order for specifics on who sued whom, but the response disappointed the defense.

David Goddard of Clarksburg, representing Jim C. Hamer Company, found it even less precise than what plaintiffs offered before.

In reply to it he summarized it as, "all defendants did everything wrong everywhere."

Cindy McCarty of Huntington, representing Western Pocahontas Properties, wrote that plaintiffs wanted every plaintiff in every county to sue every defendant.

William Slicer of Huntington, representing Rowland Land Company, wrote that plaintiffs offered "the same vacuous allegations that Rowland faced before."

In reply to their claim that Rowland failed to monitor contractors on its land he wrote, "Where? Which operation? In what way did this occur?"

He wrote that Rowland owns about 45,000 acres.

Ohio County Circuit Judge Arthur Recht recently held a hearing on whether plaintiffs abided by his order. He said Oct. 16 that an order would follow.

Recht and two other judges handle all suits over a flood that struck eight counties of southern West Virginia in 2001.

Raleigh County Circuit Judge John Hutchison held trial in March and April at Raleigh County courthouse in Beckley, on claims from part of the Guyandotte River watershed.

Plaintiffs and defendants settled outside Hutchison's court throughout trial, until the case practically evaporated.

At the end jurors found Western Pocahontas liable for land disturbances that made the flood worse.

Next, Hutchison will hold trial to find out how many people Western Pocahontas harmed and how much it owes them. He has not set a date.

Nicholas County Circuit Judge Dan Johnson will hear claims from other parts of the Guyandotte River watershed, after Recht and Hutchison have proceeded.

Stuart Calwell of Charleston and James F. Humphreys and Associates of Charleston represent most plaintiffs

In June they sought to satisfy the defense in Recht's watershed with a "unified more definite statement" of their claims.

In their statement John Bailey of the Humphreys firm listed 38 defendants and wrote that 16 allowed mining or timbering on their land, 21 conducted timber operations and ten engaged in mining. He placed some defendants in two of the groups.

He wrote that one defendant, Norfolk Southern Railway, built a railroad.

Lumping them all together, he wrote that "large quantities of surface waters which formerly lay upon the property until it naturally evaporated, and/or percolated into the soil and/or percolated into the soil and/or was collected into certain streams and other natural drainage, did unnaturally flow upon the plaintiffs' land, causing damages and harm to the persons and/or homes and/or property of the plaintiffs…"

He then listed all mining permits and timber permits of defendants in the watershed.

In response, 14 defendants moved for summary judgment and nine moved to dismiss.

Greg Goodykoontz of Clarksburg, representing Columbia West Virginia Corporation, wrote, "Plaintiffs allege that there was too much timbering, but they never specify what constitutes too much timbering or which defendant did too much timbering."

Other defense attorneys called the statement sketchy, shotgunning and a rehash.

In August plaintiffs asked permission to consolidate and amend their complaints. They asked for time to conduct discovery.

In September defendants asked Recht to deny consolidation and amendment.

Slicer wrote for Rowland Land Company, "All the court has required is that the plaintiffs identify why they dragged Rowland into court."

He wrote that plaintiff attorneys collected as many plaintiffs as they could without making any attempt to learn whether they had valid complaints.

Attorney David Yaussy of Charleston, representing Penn Virginia Operating Company, wrote that plaintiffs would already have the information they say they need, if they had complied with rules of civil procedure.

He wrote, "It must be in their possession, because they could not have filed complaints or made good faith disclosures unless they already had it."

He wrote that no one contradicted that 160 plaintiffs made no disclosure against Penn Virginia, or that 97 failed to name and serve it, or that 155 lived upstream from its land.

He wrote that if plaintiff attorneys amended their complaint, they would add new plaintiffs and probably sue new defendants.

Misty Heitz of Clarksburg, representing Columbia West Virginia, wrote, "To ask for more time now to conduct discovery reflects the inadequacy of the factual basis for the case against Columbia."

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