THEIR VIEW: Manchin simply was doing his job

By The West Virginia Record | Aug 21, 2008


MORGANTOWN -- The New York Times breathlessly reported last week about the Manchin Administration's decision to intervene in the appeal of the $382 million dollar judgment against the DuPont Company over pollution at its old operations in Spelter.

"Files Show Governor Intervened With Court" read the Times' headline, suggesting some nefarious attempt by Manchin to muscle a verdict his way.

In fact, what the Manchin Administration did is what lawyers, organizations and, yes, government agencies do all the time; the Governor's lawyers submitted legal briefs in support of a particular position that's being considered by the court.

The argument stems from a verdict by a Harrison County jury last year, which found Dupont responsible for pollution at an old zinc smelting plant. The jury awarded $382 million in damages.

The judgment includes $130 million to pay for medical monitoring for the 7,000 people named in the class action lawsuit. A whopping $196 million is for punitive damages. The Daily Mail reports that the lawyers will collect a cool $135 million.

It's the size of the punitive damages that has Manchin worked up. And, after a conversation with DuPont brass, he agreed to step in to the fray.

The Times ominously reported, "it was the first time a West Virginia Governor had taken such action in a case in which the state was not a party."

Judging by my conversation with Manchin yesterday, the Governor is wearing that distinction like a badge or honor rather than a like the scarlet letter awarded by the Times.

Manchin believes West Virginia should be like most other states and provide an automatic right to appeal civil verdicts. Our state Constitution says it's up to the state Supreme Court to decide whether to grant an appeal, but there's also a U.S Supreme Court decision supporting the automatic appeal.

The Times story is getting plenty of attention, especially from plaintiff's attorneys who see Manchin's intervention as an overreach by one branch of government (the executive) into another (the judicial).

Charleston trial attorney Harvey Peyton posited to me why the Governor would get involved in this case involving a large and powerful corporation, but not another where the fate of some lesser-known company or individual was a stake.

The story has become Manchin's direct involvement in the case. No doubt Manchin, who remains the state's leading salesman, sees the size of the punitive damages as well as the possibility there will be no appeal granted in the case, as yet another red flag for any business interested in coming to the state.

But then there is also the matter of justice. Without sitting through the trial it's hard to know whether the punitive damage portion of the verdict is a justified penalty for egregious actions by the company or some sort of run away jury verdict.

Justice, however, is not always meted out after one stop in the courts. Mistakes are made. That's why the right to appeal is so vital to the legal process.

It's reasonable to believe that a civil verdict of the magnitude of the DuPont case should get a second look by the West Virginia Supreme Court.

Kercheval is vice president of operations for MetroNews and the host of Talkline, which has become a signature program of the network.

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