Flood 'fact sheets' shed little light

By Steve Korris | Feb 27, 2009

BECKLEY – Seven and a half years after lawyers sued hundreds of businesses over flood damage on behalf of about 2,000 clients, the lawyers still haven't explain how any of the businesses harmed any of their clients.

"Fact sheets" that the lawyers provided to a panel of circuit judges in December filled 12 big boxes but didn't contain enough facts to fill a manila envelope.

The judges had handed out blank sheets at a meeting in Beckley last fall, directing the lawyers to state each plaintiff's claim against each defendant.

The lawyers seemingly responded as if they thought the judges were kidding.

Stuart Calwell of Charleston, representing about half the plaintiffs, described the damage in 46 words and submitted the same statement for every client.

He wrote, "The defendants disturbed the land above and surrounding my property in such a careless and heedless way that when it rained, all manner of debris, mud, rock, saw logs, stinking chemicals and huge amounts of water came roaring down the hills and hollows flooding us out."

He attached lists of defendants but alleged nothing specific against any defendant.

He admitted he hadn't found some clients, but he filled out their fact sheets and pledged to supplement the sheets when he tracks the clients down.

Randolph McGraw of Prosperity, representing about half the plaintiffs, delivered a few more details on damage but alleged nothing specific against any defendant.

For a typical client, both Calwell and McGraw submitted a fact sheet from their own legal team and a different one from the client.

On the line where the sheet asked for entities against which a plaintiff made a claim, McGraw client Dianna Altizer wrote "Georgia Pacific."

On the same line McGraw's team stamped, "All defendants named in the complaint."

Some Calwell clients submitted claims that didn't match his description.

Freda White wrote, "Lost everything."

Willa Lewis wrote, "Lost my house."

Joann Karantonis wrote, "Loss of gas furnace, chain link fence, weed eater, lawn mower, crack foundation, lots of mud and debris, water hose and reel, out building washed off foundation."

John Dickens wrote, "Flooding from stream after pond broke in Booger Hollow."

McGraw client Joseph Allen wrote, "Home completely destroyed," but the sheet McGraw filled out for Allen didn't mention that.

Tony Browning wrote, "Resale value suffered," and added a personal injury claim that his wife contracted pinworms while cleaning up.

Six counties in southern West Virginia suffered damage after a storm poured two to five inches of rain across the region on July 8, 2001.

Lawsuits quickly followed. The West Virginia Supreme Court of Appeals consolidated them, divided them by watersheds, and assigned them to a Mass Litigation Panel.

A Raleigh County jury held Western Pocahontas Properties liable for damage in one watershed in 2006, but Circuit Judge John Hutchison overturned the verdict.

Plaintiff lawyers inflamed jurors instead of informing them, he wrote, and their experts did not deliver scientific testimony.

Plaintiff lawyers lost another round when Circuit Judge Arthur Recht of Wheeling dismissed hundreds of suits for failure to state specific claims against defendants.

The Supreme Court of Appeals set the litigation train back on track by restoring the Raleigh County jury verdict and reinstating the suits Recht dismissed.

To emphasize their displeasure, the Justices pulled Recht off the mass litigation panel.

The panel then asked for the very facts that the Justices reversed and repudiated Recht for trying to obtain.

If they guessed they would receive more respect than Recht, they guessed wrong.

Now Raleigh County taxpayers must pay for work the plaintiff lawyers won't do. Court clerks have started assembling a giant spreadsheet of plaintiffs and defendants.

County court administrator Paul Flanagan said that when the clerks finish it, lawyers on both sides would review it for accuracy.

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