CHARLESTON - Massey Energy's case against the Boone Circuit Court reporter has been set for a September 2007 trial.

U.S. Magistrate Judge Mary Stanley filed her scheduling order in October, setting Sept. 26 as the trial date. U.S. District Judge David Faber will be presiding.

Massey is alleging that Jennifer Meadows "intentionally misrepresented her ability to produce a transcript" for a trial in which Massey and several of its subsidiary companies were sued. Ultimately, Massey was ordered to pay more than $50 million in damages

Massey also claims Meadows' actions has caused them "substantial financial damages."

In 1998, Hugh M. Caperton, Harman Development Corp., Harman Mining Corp. and Sovereign Coal Sales Inc. filed the suit against Massey Coal, Elk Run Coal Co., Independence Coal Co., Marfork Coal Co., Performance Coal Co. and Massey Coal Sales Co. alleging Massey was liable for damages arising out of a series of transactions that also were the subject of a separate lawsuit in Virginia.

A seven-week trial began in May 2002 in Boone County Circuit Court, and it ended on Aug. 1, 2002. The jury ruled against Massey, which was ordered to pay more than $50 million in damages.

In its complaint, Massey says it filed post-trial motions on Aug. 30, 2002. Circuit Judge Jay Hoke entered a final order overruling Massey's motions on March 15, 2005.

On April 14, 2005, Massey filed a request for an appellate transcript and paid $10,000, the amount required by Meadows to have the transcript completed.

On May 12, 2005, Hoke granted Massey an extension until Sept. 16, 2005, to file its appeal "based on the fact that Ms. Meadows represented that she was having difficulty completing the transcript."

On Sept. 8, 2005, the state Supreme Court of Appeals gave Massey another extension through Jan. 1, 2006, to appeal after Meadows again said "her work load prevented her from completing the transcript."

After Meadows again was unable to produce any of the transcript, Massey asked the administrative office of the state Supreme Court to investigate.

That investigation, the complaint says, "revealed that Ms. Meadows was not too busy to complete the transcript, but had intentionally misrepresented her ability to produce a transcript."

"The investigation established that she had corrupt computer files, poor quality notes, faulty equipment, and had engaged in a practice of not recording or transcribing significant portions of the trial including the pre-trial conference, the jury voir dire, opening statements, and a significant number of the bench conferences," the complaint states.

Massey says no Stenomask tapes are available for any of the trial.

"The July audiotapes that are available are from a recording device with a single microphone placed on the witness stand," the complaint states. "As a result, the tape is substantially inaudible any time the witness or an attorney turns away from the microphone, when a bench conference occurs, or when there is any commotion or disturbance in the courtroom.

"The total absence of the Stenomask recordings make it impossible to determine what occurred during the inaudible portions of the only available audiotapes."

On Dec. 12, 2005, and March 2, 2006, the state Supreme Court granted two more extensions for Massey to appeal to allow the Court's administrative office to seek independent court reporters to produce the transcript.

Massey says an "incomplete and inaccurate copy of the purported trial transcript was produced in piecemeal fashion over a period of several months" with the final portion provided on May 11, 2006.

The company says three days of the 32 trial days have no transcript. That includes jury voir dire and jury selection. It also says substantial portions of six days also have no transcript.

In addition, Massey says the provided transcript has "countless errors," "significant gaps" and "un-quantified, un-transcribed" portions of the trial resulting from "computer malfunction" and/or "computer blackout."

Massey says about 25 percent of the proceedings are missing or unintelligible.

"Due to the length of time that has passed since the trial, the failure of the court reporter to provide a trial transcript, and the failure of the subsequent reporters retained by the West Virginia Supreme Court of Appeals to produce a usable transcript, Massey has been denied its due process right to prosecute an appeal of the trial court's verdict," the complaint states.

That, Massey says, is a violation of the 14th Amendment of the United States Constitution and Article 3 of West Virginia's Constitution.

Commenting on Meadows individually, Massey's complaint says the state Supreme Court investigation showed she "intentionally and materially misrepresented the status of the transcript."

It also says Meadows had a duty to take full shorthand notes of the proceedings.

Her "intentional wrongful conduct resulted in excessive delays and a failure to produce a complete and accurate transcript of the lower court proceedings," the complaint states. "Because of the delay and the errors and omissions in the alleged transcript, that render it utterly worthless for the purposes of prosecuting an appeal, Massey has suffered substantial financial damages."

That includes Massey having to post a letter of credit for $55 million - the jury award plus one year's worth of interest - on July 16, 2003. That letter of credit, the suit says, renews automatically and remains in place.

Plus, as delays piled up, Caperton filed a motion asking the security be raised to $72 million. That, however, later was stayed by the state Supreme Court.

Massey secured the $55 million letter of credit by borrowing nearly $58 million and placing it in a restricted account. The suit says Massey has paid and will continue to pay interest on that amount until the underlying case is resolved. Also, Massey has a letter of credit fee of $275,000 annually it incurs until the case is resolved.

"Massey has suffered and continues to suffer damages of approximately at least $13,709 per day in the form of post-judgment interest," the complaint states.

Meadows' acts "have deprived Massey of its due process rights � irreparably harming and prejudicing Massey in the conduct of its business and causing the accrual of exorbitant amounts of post-judgment interest as well as substantial and unnecessary attorney fees and costs."

Meadows claims that she can not be sued for performing her job. Massey counters by saying it is suing her as an individual in its response to her motion to dismiss.

"Massey seeks to impose individual, personal liability on Jennifer Meadows, a state employee, for actions taken under color of state law and with the badge of state authority," the response says. "The reference to employment is solely for purposes of identifying Ms. Meadows as a state employee acting under color of state law."

It also claims Meadows is not entitled to governmental immunity.

Stephen Burchett of Offut, Fisher and Nord in Huntington is representing Massey.

Massey is also suing the state's Supreme Court, alleging that it can not be treated fairly by Justice Larry Starcher. Starcher has been quoted as calling Massey boss Don Blankenship "a clown."

U.S. District Court case number: 2:06-0484

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