Flood panel judges announce 60-day deadline

By Steve Korris | Oct 8, 2008


BECKLEY – Seven years after a natural flood produced a flood of lawsuits, the lawyers who filed them suddenly face a 60-day deadline to explain who sued and why.

A panel of six circuit judges announced the deadline to about 50 plaintiff and defense lawyers at Raleigh County courthouse in Beckley on Oct. 7.

The judges, appointed as a Mass Litigation Panel by the Supreme Court of Appeals, promised to speed up and simplify flood litigation.

"Our goal is to try and get you more consistent rulings and more consistent movement in the case," said panel chairman Alan Moats, circuit judge from the 19th District of Taylor and Barbour counties.

He said the panel doesn't know how many cases it has.

Plaintiff lawyers received a fact sheet to fill out for every client, asking for information that normally would appear in a civil complaint.

As a practical matter, the fact sheets will serve as complaints. Moats said the panel will assign a case number to each fact sheet.

He said the panel will require electronic filing of documents for flood suits, asbestos suits and other mass litigation.

He said 21 states use electronic filing, and two use it statewide.

Sensing fear among those lacking computer skills, he said, "It's hard to deal with anything you haven't had any experience with before.

"It's the only way that we can finally bring accountability to these mass cases."

Panel member Booker Stephens of McDowell County said, "This panel is at the forefront and on the cutting edge of handling mass litigation cases in this country.

"Other states will model what we do, and you will be a part of that. Some day you will look back and say Judge Stephens was right like he always is."

Along with Moats and Stephens, the panel includes Jay Hoke of Lincoln County, John Hutchison of Raleigh County, Derek Swope of Mercer County and James Mazzone of Ohio County.

The litigation started in 2001, after a July storm poured up to five inches of rain across southern West Virginia.

Five rivers flooded, damaging properties in seven counties.

Victims sued coal mines, railroads, timber companies and other defendants in seven courthouses.

They alleged that defendants disturbed the land in ways that made the flood more severe.

Mass Litigation Panel members Hutchison, Arthur Recht of Ohio County and Gary Johnson of Nicholas County took charge of the cases and divided them by watersheds.

For each watershed they planned two trials. The first would determine liability and the second would determine damages.

Hutchison held the first trial in 2006. All defendants settled during trial except Western Pocahontas Properties.

Jurors found the last defendant liable.

Instead of proceeding to a damage trial, Hutchison threw out the verdict. He ruled that plaintiffs inflamed jurors instead of informing them.

Recht then dismissed suits from an entire watershed, ruling that plaintiff lawyers failed to tell him which plaintiff sued which defendants.

The Supreme Court of Appeals reversed both, reinstating the verdict of Hutchison's jury and reviving the suits before Recht.

Meanwhile, the Justices had dropped Recht and Johnson from the panel.

In July 2007, the Justices appointed the current members, retaining only Hutchison from the former panel.

The new group set up a new structure, with no division by watersheds.

They chose Hutchison, Hoke and Swope to manage court proceedings, and they chose Stephens, Moats and Mazzone to oversee settlement negotiations.

Although the Justices reversed Recht and dropped him, the new panel seeks the very facts that the Justices said Recht didn't need.

The new panel's fact sheet asks a plaintiff to identify every person or entity who caused property damage.

It asks for the basis of the claim and the location of the damaged property.

It asks the identity of the stream that caused the damage.

It asks if a plaintiff claimed insurance coverage and if so, it asks for the status of the claim.

The fact sheet also asks for personal information. Hutchison said the panel would seal the fact sheets to protect personal information.

Moats said later that after the panel reviews the fact sheets, members will decide how much information to release to the public.

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