CHARLESTON – An attorney who once filed a water contamination lawsuit against Massey Energy now has sued former Massey CEO Don Blankenship for abuse of process and malicioius prosecution.
Kevin Wayne Thompson filed his federal lawsuit Jan. 11 in U.S. District Court in Charleston against Blankenship, attorney Daniel L. Stickler and the Jackson Kelly law firm.
In his complaint, Thompson says he filed a lawsuit on behalf of some Mingo County residents in 2004 alleging damages from water contamination against Rawl Sales and Processing, a Massey subsidiary. As part of that, he wrote the Mingo County Commission asking for aid in securing funding for a municipal water line to provide clean water to his clients. In the letter, he said he would be willing to share evidence gathered in the lawsuit that showed Rawl Sales & Processing knowingly contaminated the water without permits.
“Blankenship and his attorneys were fully aware that Mr. Thompson had consulted experts to gain an understanding of the mining practices, regulatory requirements and health impacts associated with the issues related in the letter to the Mingo County Commission,” the complaint states.
He claims that on April 24, 2006, Rawl Sales & Processing filed a defamation suit against Thompson and law partner at Smith and Thompson in Kanawha Circuit Court. It was filed by Stickler with Jackson Kelly.
“Five years after sending the letter to the Mingo County Commission, the West Virginia Mass Litigation Panel denied summary judgment motions filed by Rawl Sales & Processing in the underlying litigation,” the complaint states. “Rawl Sales & Processing in responses to discovery indicated the decision to sue Mr. Thompson had been made by Mr. Blankenship.”
Smith and Thompson filed a motion for summary judgment, and Judge Jennifer Bailey granted it on Jan. 10, 2014.
“Throughout the pendency of the lawsuit, Mr. Thompson suffered damages including but not limited to legal expenses, costs, annoyance, inconvenience and emotional distress,” the complaint states.
He claims Blankenship abused the process and is guilty of malicious prosecution by deciding to institute a suit against Thompson without merit to punish him “for exercising his First Amendment right to petition government for redress of specific grievances.” Stickler and Jackson Kelly should have known it was an abuse, Thompson claims, and that also makes them guilty of negligence as well as intentional and negligent infliction of emotional distress.
Thompson seeks compensatory damages for attorney fees, court costs, annoyance, inconvenience and emotional distress. He also seeks punitive damages and other relief.
In December, Blankenship was found guilty of one misdemeanor charge of conspiring to willfully violate mine safety and health standards related to Massey’s Upper Big Branch Mine disaster in 2010 that killed 29 miners. He faces up to one year in federal prison when he is sentenced this spring and a $250,000 fine.
In coverage of the Blankenship trial, Thompson was quoted by national media talking about Blankenship.
“When I deposed him, I asked him why he installed his own water line,” Thompson told The New York Times. “And he said something like, ‘Because Appalachian well water can be of poor quality sometimes.’ Which is true. Now, it should be noted that the water is of poor quality because of a century of mining. But he was telling the truth. …
“I think he just doesn’t give credit to anyone who isn’t successful. In his mind, that’s their fault. He lifted himself out of poverty, so why can’t they? That leads to this attitude that his neighbors are just in the way of profit.”
Thompson also spoke to Mother Jones.
“A common observation from those who have interacted with him is that when he gets agitated, he licks his lips ‘epileptic-like,’ says Kevin Thompson, a West Virginia attorney who once deposed Blankenship,” that story says.
"There is kind of a movement in the head, and there's that tongue thing going on," Thompson continued. "But what I'm struck by are his dead eyes.
"I just can't see him pleading. It's not in his nature. And I hope he doesn't, because it would kind of diminish his stature in my mind if he pled. He stuck with his guns so long, he's almost a cartoon character by now — just an unabashed villain .. I hope he keeps going, because I think the jury, the judge — everybody — will throw him under the jail if given the chance."
Thompson, who is listed as resident of Louisiana, is representing himself. He now works for the Thompson Barney law firm in Charleston.
U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-00213