West Virginia Record

Friday, February 28, 2020

Recht throws out chunk of flood lawsuits

By Steve Korris | Jan 24, 2007


BECKLEY – One sixth of the lawsuits from the flood of 2001 washed down the drain Jan. 18, when Ohio Circuit Judge Arthur Recht dismissed every claim from the Coal River watershed.

Recht, a former Justice of the West Virginia Supreme Court of Appeals, called the Coal River litigation a morass, meaning a swamp.

He implied that plaintiff attorneys never really filed complaints at all.

"Plaintiffs have never provided the basic, core information that must be included in all complaints," Recht wrote.

Instead, he wrote, they provided "sketchy generalizations of a conclusive nature unsupported by operative facts."

"A client's mere suspicions do not create a sufficient factual basis for filing a lawsuit," he wrote. "So-called 'mass litigation' filings require greater rather than lesser vigilance regarding the sufficiency of pleading."

Recht signed the order at Wheeling but it takes effect in Beckley, at the Raleigh County Courthouse. He heard the case by appointment of the Supreme Court of Appeals. Raleigh Circuit Judge John Hutchison and Nicholas Circuit Judge Gary Johnson also are presiding over flood suits by special appointment.

In 2002, the state Supreme Court rolled thousands of suits from seven southern counties into one big pile at Beckley.

The suits alleged that coal mines, timber operations and other businesses disturbed the land in ways that increased damage from a flood on July 8, 2001. Plaintiffs sought to recover under a broad theory of strict liability and on theories of negligence, nuisance, unreasonable use and interference with riparian rights.

In 2004, the Supreme Court ruled out a theory of strict liability. Plaintiffs would have to identify specific acts that caused specific harm.

In 2005, the Court split the suits into six watersheds for six trials. If jurors in a watershed found anyone liable, a second jury would award damages.

Each judge accepted a watershed, and each agreed to start over with a second watershed after wrapping up the first one.

Hutchison held the first trial last year. On May 2, jurors found the timbering practices of Western Pocahontas Properties and Western Pocahontas Corp. did increase water runoff and that the company's use of land was unreasonable. All other defendants settled before trial ended.

Hutchison has not set trial on damages.

Johnson has not set his first liability trial.

Now Recht has called off his first trial.

He filled 31 pages with criticism of pleadings from Stuart Calwell's law firm, McGraw Law Offices and James F. Humphreys & Associates.

"None of the complaints or amended complaints contains any particular allegations by any particular Plaintiff against any particular Defendant," Recht wrote. "Plaintiffs' complaints and amended complaints do not state what actionable conduct it is that any particular Defendant is alleged to have engaged in to cause or exacerbate any particular Plaintiff's alleged injuries."

Recht wrote that plaintiffs "lump together innumerable claims against scores of Defendants without distinguishing or delineating them in any way" and that plaintiffs persisted in making claims for strict liability after the Supreme Court ruled it out.

He wrote that last February he gave them 30 days to explain which plaintiff challenged which defendant, which operation or property of each defendant harmed each plaintiff, and which activities of each defendant was allegedly tortuous.

"This information was something that Plaintiffs should have known at the time they instituted their suits and not something that they could rely upon the discovery process to formulate," Recht wrote.

He wrote that he needed the information to align plaintiffs against defendants in a trial he had set for June.

On March 21, he wrote, plaintiffs asked for an indefinite extension of time to disclose the information. On March 27, he granted an extension to April 7. Also on March 27, plaintiffs moved to continue the trial.

In April, he wrote, plaintiffs submitted preliminary disclosures. Defendants responded that he should strike them for lack of specifics.

At a hearing June 1, he wrote, plaintiffs argued that the disclosures met the requirements of his March 27 order.

He disagreed, telling plaintiff lawyers they inevitably returned to a theory of strict liability that the Supreme Court foreclosed.

Still, he gave them 10 days to try again.

Eleven days later McGraw, Humphreys and Calwell filed statements dividing defendants into groups of land owners, timber companies and mining companies.

For each group, they listed identical allegations against every defendant.

Next, Stuart Calwell on behalf of his plaintiffs and David Cecil on behalf of Humphreys' plaintiffs signed affidavits that did not exactly please Recht.

"Both of these affidavits admit that the Plaintiffs are unable to provide any factual foundation to support the generic, fault-based allegations in their various complaints and amended complaints and state that they need discovery to try to find that information," Recht wrote in his Jan. 18 order.

"In other words," he wrote, "at the time the lawsuits were filed and now some five years later (after having been required repeatedly by this Court and given full opportunity to provide this basic, core information), Plaintiffs did not and do not have any factual predicate as to any Defendant for the fault-based causes of action they generally pled against all Defendants.

"Presumably, Plaintiffs will dismiss any Defendant about which they cannot discover any culpable conduct related to their alleged loss. This approach is not in accordance with our Rules and is unfair and prejudicial."

He quoted a Supreme Court decision that a plaintiff may not "fumble around searching for a meritorious claim within the elastic boundaries of a barebones complaint."

"General allegations that all defendants engaged in the normal activities associated with the conduct of their lawful businesses without any specific information as to each defendant to indicate that such activities were conducted improperly or unreasonably are insufficient," Recht wrote. "When a claim is made outside the realm of strict liability, each plaintiff should investigate before filing suit and allege with an adequate level of specificity the liability-producing acts or omissions of each defendant ..."

Recht declared the complaints deficient and noted that he gave plaintiffs "opportunities to possibly breathe some oxygen into their otherwise deficient complaints ..."

"Complaints may not be filed where plaintiffs intend to find out in discovery whether or not, and against whom, they may have a cause of action," he wrote.

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