WEST VIRGINIA RECORD

CHARLESTON – Raleigh Circuit Judge John Hutchison must reinstate a jury verdict blaming Western Pocahontas Properties for damage from a flood that struck near Mullens in 2000, the West Virginia Supreme Court of Appeals ruled Thursday.

Hutchison presided over a trial in 2006 but overturned the verdict last year, finding that plaintiffs inflamed jurors by substituting sensational testimony for evidence.

He ruled that he would grant western Pocahontas Properties a new trial if the Supreme Court of Appeals reversed him, but the Court told him he couldn't hold a new trial.

The Court's opinion also reversed Ohio County Circuit Judge Arthur Recht, who had dismissed flood damage claims from a different watershed.

The double victory for plaintiffs came from a Court that included two elected Justices and three who heard the appeal by special assignment.

Chief Justice Spike Maynard and Justices Brent Benjamin disqualified themselves. Circuit Judges Russell Clawges, Darrell Pratt and O. C. Spaulding replaced them.

The substitutes joined Justices Joseph Albright and Larry Starcher in a unanimous opinion.

Hutchison's jury heard claims of flood damage victims from the Slab Fork watershed.

Hutchison admitted testimony of experts Bruce Bell and John Morgan, but after trial he decided jurors shouldn't have heard them.

The Supreme Court of Appeals declared their testimony valid, finding that they "had extensive training, education, and professional experience and expertise on how land disturbance affects the flow of surface water."

"This was not a case of a befuddled jury confounded by bizarre, absurd or irrational pseudoscientific assertions," they wrote.

"The jury was entitled to resolve the conflicts in the evidence and to believe the plaintiffs' experts and disbelieve the defendants' experts. The jury apparently did just that."

They also rejected defense claims of due process violations. "The trial of 'mass claim' cases may necessitate novel and creative trial procedures," they wrote.

Hutchison's jury established liability but not damages. He must now conduct a trial to determine damages.

The Court also rejected the reasoning of Recht, who had dismissed all claims from the Coal River watershed.

Recht ruled that the complaints before him "did not specify which plaintiffs were suing which defendants, which defendants' operations were at issue, or what was alleged to be improper with regard to any specific defendant operation."

The Court wrote that plaintiffs needed to prove "that the defendants' land disturbance activities had unreasonably caused or contributed to flooding that injured the plaintiffs."

They wrote, "There is no merit to the defendants' argument and the panel judge's conclusion that the plaintiffs' complaint does not give the Coal River defendants fair notice of the asserted factual and legal basis for the plaintiffs' claims."