Judge chides expert witnesses in flood trial order

BECKLEY – For five years attorneys, promised to prove that coal mines and timber companies contributed to damage in a flood. But in the first trial of their claims, they produced no proof at all.

Raleigh County jurors ruled in their favor anyway, but Circuit Judge John Hutchison set aside the verdict March 15.

He did not blame jurors for reaching a wrong decision. He blamed himself for allowing inflammation and speculation.

He cleared the books on the defendant, Western Pocahontas Corporation, and applauded its timber management practices.

The flood followed a storm July 8, 2001. It damaged homes, businesses and other properties in eight southern West Virginia counties.

Thousands of lawsuits followed. The West Virginia Supreme Court divided them into six watersheds and assigned them to three judges.

Hutchison started the first trial in March 2006 with 31 defendants. Before it ended in May, every defendant settled out except Western Pocahontas.

If Hutchison had let the verdict stand, he would have held a second trial to determine damages.

He committed his big error before trial when he let plaintiff attorneys convince him they had scientific evidence on their side.

The evidence, they assured Hutchison, would allow them to pinpoint sources of unreasonable water flow.

They argued that each owner of damaged property could then recover from a particular land owner or owners upstream.

At first they planned to call three experts - Bruce Bell, John Morgan and William Martin. For trial, they withdrew Martin.

Hutchison let Bell and Morgan testify, but he wound up regretting it.

"The fallacy in their attempted proof is that they relied upon untested and unproved applications of otherwise recognized engineering tools," he wrote. "Experts do not, when they are called to testify, leave behind their obligation, required of scientific professionals, to subject the material upon which they are relying to close scrutiny from a scientific viewpoint."

He wrote that Morgan could not say when water coming off Western Pocahontas land arrived in the town of Mullens or whether it had any material impact on flooding there.

Hutchison wrote that Morgan and Bell resorted to engineering models commonly used for predicting peak surface flow. He wrote that their assumptions did not use data from the watershed.

He wrote that Morgan based his analysis on a hypothetical area and that one of the models was designed to test the sensitivity of land in small urban settings.

"Plainly put," he wrote, "the assumptions used in the hypotheticals, upon which Mr. Morgan and Dr. Bell based their opinions, do not fit the facts of this case.

"There is no evidence that these predictive models can be adapted and used in a forensic application to determine if a historic use of a given piece of real estate has caused inappropriate increases in peak flows during storm events.

"It is not proper proof by circumstantial evidence to say that, because there was a potential increase in peak flow from a piece of real estate located several miles from the mouth of the Guyandotte River, that this increase in peak flow caused or contributed to the flooding.

"The absence of any evidence regarding the downstream effect of increased peak flow left this jury with nothing other than speculation upon which to base a decision ... neither Dr. Bell nor Mr. Morgan could or did testify that the hypothetical increases in peak flow in any way caused or contributed to the overflowing of the receiving streams in any way."

Hutchison wrote that he committed another error by letting Morgan and Bell testify about reports by Martin, the witness plaintiff attorneys withdrew.

"There was no evidence presented in this case that the reports, conclusions and data collected by Dr. Martin had ever been tested or were ever subjected to peer review," he wrote. "There is no proof in the record that Dr. Martin's report was, from a scientific standpoint, relevant and reliable.

"... It is impossible, upon review, for this Judge to find that these witnesses qualified as experts by knowledge, skill, experience, training or education, in this case."

He declared their testimony neither relevant nor reliable.

"Their opinions were unsupported, not based on reliable scientific method, and amounted to nothing more than subjective belief and unsupported speculation," Hutchison wrote, adding that Western Pocahontas utilized management practices that would abate any negative effect of land disturbance in four years.

"Plaintiffs produced no evidence that the Defendants failed to adhere to the best management practices, industry standards, and/or state regulations ..."

He wrote that the timber management plan resulted in a net increase in available timber over 10 years.

"It then becomes incumbent upon the Plaintiffs to show what reasonable and additional protections or conduct, if any, would have provided an increased and material protection to adjoining landowners or downstream landowners in the event of a major rain event," he wrote.

"The lawful and regulated extraction of timber from lands in Slab Fork Creek subwatershed by Western Pocahontas was not unreasonable."