CHARLESTON – District Judge John T. Copenhaver has ruled that local workers who lost only their wages during the January 2014 chemical spill and the water crisis that followed won’t be able to continue their lawsuits against West Virginia American Water.

Residents and businesses affected can still continue to pursue their economic claims against Eastman Chemical, the company that manufactures MCHM, the judge ruled on Oct. 6.

Two motions for partial summary judgment were pending before the court, each on the issue if the economic loss doctrine, according to the judge’s memorandum opinion and order.

Copenhaver granted a motion from West Virginia American that a legal doctrine known as the “economic loss rule” prohibits the “wage earners” in the lawsuit from recovering damages from the water company.

“The wage-earner plaintiffs have not showed that there is a sufficiently ‘close nexus’ between them and WV American, the utility company, to justify the application of the ‘special relationship’ exception,” Copenhaver wrote. “As a result, wage earners like Maddie Fields do not have a cognizable claim for economic loss against the water company defendants, and the water company defendants’ motion for partial summary judgment as to the wage earners must be granted.”

The judge denied a similar motion, in which Eastman attempted to use the same doctrine to have claims against the chemical firm by the broader class of residents and businesses also thrown out.

With respect to the plaintiffs’ pipes, water heaters and appliances, there is no reason to think that because a substance merely “passes through” property that it does not necessarily cause injury in doing so.

“The injury caused might simply be the residue left in the pipes, leakage into adjacent joints and seals, and the concomitant contamination of the plumbing system,” Copenhaver wrote. “At least in theory, these injuries were real and had to be remedied by the flushing protocol, just as, at least in theory, injuries cause by radiation were real in [Commonwealth of Pennsylvania v.] General Public,”

As in the General Public lawsuit, the nature and extent of the injury to plaintiffs’ real property here as a result of contamination must be developed further in the damages phase of this litigation; if no injury to person or property can be shown, plaintiffs of course cannot recover.

“Damages to pipes, water heaters and other appliances, however, are at least susceptible of proof,” he wrote. “Accordingly, Eastman’s motion for partial summary judgment must be denied.”

The 2014 lawsuit alleges that West Virginia American did not adequately plan for or respond to the spill and that Eastman did not properly caution Freedom about the potential dangers of the Crude MCHM it sold to Freedom.

Copenhaver previously approved the case to be pursued as a class-action over the liability of the water company and Eastman.

Plaintiffs like Fields, who lived in St. Albans and worked at Arby’s in Cross Lanes, was not physically harmed by the spill. Fields lost wages due to Arby’s closure by the “do not use” order issued after West Virginia American’s water supply was contaminated.

Where Fields lived, the local water system was not affected at all by the Freedom spill.

Attorneys for West Virginia American argued that the economic loss rule blocked the case brought by wage earners who were not physically harmed but suffered financial losses when their places of employment were closed while the “do not use” order was in effect.

Copenhaver ruled that West Virginia American was correct.

The trial is scheduled to start in less than three weeks on Oct. 25, according to Copenhaver’s Aug. 5 scheduling order.

U.S. District Court for the Southern District of West Virginia case number: 2:14-cv-01374

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