Mingo slurry cases settled, group trials avoided

WHEELING – As Circuit Judge James Mazzone prepared for the first of many group trials over water pollution from former Massey Energy mines in Mingo County, Circuit Judges Derek Swope and Alan Moats relieved him of the duty.

From July 25 to 27, they successfully mediated a settlement between the current owner of the mines, Alpha Natural Resources, and clients of Kevin Thompson of Williamson.

Mazzone would have started trial Aug. 1 in Wheeling.

Thompson filed hundreds of suits in 2005 and 2006, claiming Massey subsidiary Rawl Sales and Processing stored slurry in ways that contaminated wells.

The Supreme Court of Appeals consolidated the cases, and the Court's Judicial Panel on Mass Litigation transferred them to Mazzone as trial judge.

The panel picked Swope as lead resolution judge, Moats as resolution judge.

Swope and Moats tried mediation last November, without result.

This May, Mazzone selected seven cases for trial in August.

He wrote that the jury would determine liability and whether the conduct of defendants entitled plaintiffs to punitive damages.

He wrote that the jury would determine proximate cause and the amount, if any, of compensatory damages.

In June, Swope signed an order reconvening mediation a week before trial.

He wrote that mediation discussions would not be used in any litigation, present or future, and would not constitute or be construed as an admission.

"Before, during and after reconvening the 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," he wrote. "The resolution judges encourage all participants to keep an open mind in order to reassess their previous positions and to find creative means for resolving the dispute."

They took his advice, and Mazzone called off the trial.

On Aug. 2, he and Swope posted notice that the panel would hold a hearing on allocation and distribution of the proceeds on Sept. 29, in Charleston.

They ordered Thompson to notify each plaintiff of the hearing, provide each with a copy of the settlement, and disclose the amount each will receive, by Aug. 29.

They ordered him to account for any hearing notices returned to him by Sept. 15.

They ordered him to submit a copy of the settlement to him by Sept. 15.

They wrote, "The settlement agreement will not be subject to distribution beyond the panel and all information regarding the terms of the settlement agreement will remain strictly confidential."

Thompson's legal team includes Van Bunch, Bruce Stanley and Sean Cassidy.