CHARLESTON – Williamson lawyers ask the Supreme Court of Appeals to hold Massey Energy responsible for a waste dump under Omar Elementary School in Chauncey, though they haven't proved Massey owned it.
Kevin Thompson and David Barney seek to reverse Logan Circuit Judge Roger Perry, who granted summary judgment to Massey in 2009.
Their client, Norma Acord, seeks damages for nuisance and negligence, along with a trust fund for medical monitoring of past and present students and employees.
Perry rejected Acord's claim that A.T. Massey or another Massey entity took control of Coal & Coke, owner of the property from 1920 to 1954.
"There is no evidence in the record before the court that A. T. Massey had any ownership interest in Coal & Coke," he wrote. "Coal & Coke undeniably continued in existence as a separate, independent corporation, and, as a result, there is no successor liability."
He also cleared Omar Mining, a Massey subsidiary, of liability. He also cleared Coal & Crane Real Estate Trust, property owner from 1955 to 1961, and Colane Corporation, which donated the property to the county board of education.
The Justices plan to hear oral arguments on Wednesday, Sept. 21.
Thompson and Barney, who located five witnesses to events that happened more than 50 years ago, plead for time to find more.
They propose "a vigorous grass roots word of mouth process to find eyewitnesses."
They wrote that they contacted old coal miners and the union, and conducted eight community meetings at churches and restaurants in and around Chauncey.
Massey lawyers Daniel Stickler and Jonathan Anderson, of Jackson Kelly in Charleston, answered that Perry recognized the lack of a legal basis for Acord's claims.
"Despite having nearly five years to develop facts to support the bare allegations in her complaint, petitioner was remarkably unsuccessful," they wrote.
They wrote that Omar Mining never owned or managed the land, and that it wasn't involved in any way in transfer of the land to the board of education.
"Petitioner was asked to identify any federal, state or local statute, rule or regulation in effect at the time that the actions of Omar Mining violated," they wrote. "Petitioner could not do so."
Colane Corporation lawyers E. M. Kowal and Andrew Ballard, of Campbell Woods in Huntington, argued that her witnesses didn't support her allegations.
They wrote that her response to their motion to dismiss contained "unsupported and, at times, incomprehensible rhetoric."
"Exerting due diligence and the proper application of law, the lower court navigated through plaintiff's unsupported, misconstrued, and sometimes incoherent claims, to appropriately rule in Colane and Cole & Crane's favor," they wrote.
Thompson and Barney replied that Perry decided issues he should leave to a jury.
"The lower court erred by failing to credit the appellant with the fairly drawn inference that if eyewitness testimony identifies dumping of certain materials known by science to contain certain toxic constituents and later scientific testing reveals the presence of the same toxic constituents, then the dumping observed by the eyewitnesses placed the toxins on the site," they wrote.