West Virginia Record

CHARLESTON -– Chief Justice Robin Davis found Mingo County coal slurry litigation against Massey Energy as hard to grasp as coal slurry.

After transferring hundreds of suits to multi district litigation in March, with a case number for each, she learned that many of them had closed.

She signed a second order without case numbers in April, transferring "all civil actions pending or subsequently filed in the circuit court of Mingo County."

All the suits allege that Massey Energy and Rawl Sales and Processing stored slurry in ways that contaminated water wells.

Most of the suits started in 2005 and 2006.

Circuit Judge Thomas Evans of Ripley has presided over all of them since last August, by special appointment of the Supreme Court of Appeals.

When Evans moved for consolidation, he supplied more than 300 case numbers.

He had missed 21 cases, however, and he sent the numbers to Davis by letter.

Davis copied the numbers into her order on March 31, only to receive another letter.

On April 27, mass litigation chair Alan Moats wrote to Davis that additional civil actions were omitted and others were included that may have been dismissed.

On April 28, Davis amended her order. She wrote that "counsel for the parties had conferred, but were unable to reach full agreement regarding omitted and previously dismissed civil actions that should be included in the referral to the panel."

On the surface, the transfer merely ships files from Williamson to Ripley.

It also alters Evans's authority, extracting him from Mingo County and employing him through the mass litigation panel.

Most of all, it demonstrates the potential for problems with mass litigation.

No one knows exactly how many asbestos suits Circuit Judge Arthur Recht of Wheeling dismissed in May. Lawyers and judges always rounded it off to 1,400.

Recht dumped the load because the Peirce firm in Pittsburgh failed to obtain client signatures on statements that they understood their claims and intended to pursue them.

Similarly, hundreds of suits over a flood in southern West Virginia dried up after the mass panel required a specific claim from each plaintiff against each defendant.