Water contamination plaintiffs must appear in court, judge says

By Steve Korris | Sep 17, 2010

CHARLESTON -– Mingo County residents who filed water contamination suits against Massey Energy and a subsidiary must show up in person to pursue their claims.

Circuit Judge Derek Swope of Princeton, as lead resolution judge, ordered all plaintiffs to appear for mediation at the Charleston Civil Center between Nov. 15 to Nov. 17.

"Failure of any person required to attend mediation in person shall subject that person to sanctions, up to and including the striking of pleadings and dismissal, absent good cause shown," he wrote Aug. 31. "The required participants shall attend the entire mediation in person and shall be available and accessible throughout the mediation process."

Swope aims to get to the bottom of a mystery, for at last report no one knew how many suits remained active.

Hundreds of suits started in 2005 and 2006, alleging Massey and subsidiary Rawl Sales and Processing stored slurry in ways that contaminated water wells.

Chief Justice Robin Davis of the state Supreme Court of Appeals listed more than 300 suits in April when she consolidated the cases.

After learning that many plaintiffs had settled their claims, she signed a second order without a list.

She wrote that lawyers "were unable to reach full agreement regarding omitted and previously dismissed civil actions that should be included in the referral to the panel."

In May, the state Supreme Court appointed Circuit Judge James Mazzone of Wheeling to preside over the litigation.

At the same time, the Justices appointed Swope as lead resolution judge and Circuit Judge Alan Moats of Grafton as resolution judge.

That gave Swope first shot at resolving the cases, and he grabbed the chance. His mediation order suggests he and Moats will press the parties pretty hard.

By Oct. 1, each plaintiff must itemize his or her damages on a single page.

By Nov. 1, both sides must deliver mediation statements no longer than 15 pages.

Swope expects "honest discussion of the strengths and weaknesses of a party's claims or defenses, the likelihood of a verdict in favor of the party, an opinion as to the probable verdict range, and an opinion as to the range of settlement value."

He expects a brief discussion of prior settlement negotiations including any outstanding demand by plaintiffs to settle the litigation.

If lawyers reach a settlement, each plaintiff must give informed consent.

If a lump sum is offered in an aggregate settlement, plaintiff attorneys must disclose to each client the number of clients, the specifics of each claim, and the method of dividing the sum.

An attorney must also disclose to each client the legal fees and costs, the method of apportioning costs among clients, and the ultimate amount each client received.

Swope will require documentation of any settlement and proof of client approval.

He invited "any suggestions regarding how the resolution judges may assist the parties in reaching a resolution."

Apparently mediation changes the rules for judges, because the order proclaimed "ex parte contacts" in bold capital letters.

"Before, during and after the scheduled mediation, the resolution judges may find it necessary and useful to communicate with one or more parties outside the presence of the other party or parties," Swope wrote.

In regular litigation, a judge shouldn't talk to one side without the other side present.

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