Three W.Va. cases at top of big '07 verdicts list

By Chris Dickerson | Feb 29, 2008


CHARLESTON – Three of the top seven jury verdicts awarded in the United States in 2007 happened in West Virginia.

The three West Virginia cases near the top of the 2007 list:

* At number three, the January verdict for $404 million in the Tawney vs. Columbia Natural Resources case in Roane County;

* At number five, the October verdict of $251 million in the Perrine vs. DuPont case in Harrison County; and

* At number seven, the July verdict of $219 million in the Wheeling Pitt vs. Central West Virginia Energy case in Brooke County.

Those are the results from a list published in the latest issue of the National Law Journal. The annual list is compiled by VerdictSearch, a sister product of the NLJ. Both are part of the ALM (American Law Media) family of companies.

The president of the Defense Trial Counsel of West Virginia said he is disturbed by the list.

"As a lawyer in West Virginia it is disturbing to me to see that almost half of the top seven verdicts in the nation in 2007 came from our state," Bob Massie said. "It is even more disturbing to me to see that these three decisions are perceived by those outside West Virginia as a general indication that West Virginia courts are anti-business.

"That is definitely not the perception that we want of West Virginia's courts."

In the Tawney case, a Roane County jury imposed about $134.3 million in compensatory damages and $270 million in punitive damages against defendants in the case of Tawney, et al. v. Columbia Natural Resources. CNR is a former NiSource Inc. subsidiary, which was sold in 2003. NiSource, Columbia Energy Group and Chesapeake Appalachia LLC were named as defendants in the lawsuit. Oklahoma City-based Chesapeake Energy bought Columbia Natural Resources of Charleston in November 2005 for $2.2 billion.

The plaintiffs in the case, natural gas royalty owners, filed the lawsuit in early 2003 alleging that CNR underpaid royalties by deducting a portion of post-production costs incurred to gather and transport gas to interstate pipelines and by not paying market value for gas produced under all leases, even those providing for payment based on actual proceeds received for the gas. Plaintiffs sought the alleged royalty underpayment and punitive damages.

The defendants believe CNR operated in good faith and that there is no valid basis for any award of punitive damages, "let alone the unwarranted and unreasonable levels granted in this case."

In the DuPont case, a Harrison County jury ordered DuPont to pay $196.2 million in punitive damages after the company was convicted of wanton, willful and reckless conduct. DuPont was ordered to pay damages for its actions at a former zinc-smelting plant, after a class-action lawsuit claimed the chemical company lied about health threats from pollution. The punitive damages were awarded in the fourth and final phase of the trial.

The lawsuit, filed on behalf of 10 residents of Spelter, involved property damages claims, long-tern health screenings and corporate accountability.

The plaintiffs won the first phase of the case Oct. 1. The jury found DuPont liable for and negligent in creating the waste site. Jurors found DuPont created a public and private nuisance.

In the second phase, jurors ordered DuPont to provide medical monitoring for 40 years to residents who were exposed to arsenic, cadmium and lead. The plan to provide the monitoring, estimated to cost more than $100 million, will be determined by Judge Thomas Bedell, who will also determine how the punitive damages will be divided.

The third phase, which concluded Oct. 15, ended with jurors deciding DuPont should pay nearly $55.5 million to clean private properties.

In the Wheeling Pitt case, a Brooke County jury ordered Massey to pay $219.7 million in damages in July to Wheeling-Pitt for violating the terms of a coal supply agreement. The judge later added interest charges that brought the judgment to $240 million.

The case has been in headlines of late because of recusal requests from both sides as the appeal goes to the state Supreme Court.

Massie, a partner at Huddleston Bolen in Huntington, said he finds the DuPont verdict quite troubling.

"The DuPont verdict in particular is disconcerting because it allows those who aren't injured to recover millions of dollars, and shows that West Virginia's decision to allow recovery for medical monitoring even in the absence of a current injury is a problem," he said. " I am also troubled by the recent decision in that case to award the plaintiffs' lawyers $127 million dollars in attorney's fees.

"I can only imagine how much per hour that would translate into if we could calculate how much time was actually put into the case by the plaintiff's attorneys, but I am sure that figure would offend the hard-working and honest citizens of West Virginia."

According to VerdictSearch's Web site, the company strives to report as many jury verdicts as possible from around the nation. In addition to accepting submissions from attorneys, the company develops leads by scouring the courts, searching the Internet and other news sources and cultivating relationships with law firms.

The verdicts are ranked by gross award and do not reflect reductions for comparative negligence; remittiturs, additurs and reversals; and attorney fees and costs (unless awarded by the jury). In situations where awards are automatically trebled by statute, the trebled amount is listed.

The top two jury verdicts on the 2007 list are a $1.5 billion intellectual property suit (Lucent Technologies vs. Gateway) in California and a $521 million fraud suit (Banco Espirito Santa International vs. BDO Seidman) in Miami.

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