Eastman Chemical settles water crisis lawsuit

By Kyla Asbury | Oct 27, 2016

CHARLESTON – Eastman Chemical has settled a class action lawsuit over the contaminated drinking water supply that occurred in 2014.

CHARLESTON – Eastman Chemical has settled a class action lawsuit over the contaminated drinking water supply that occurred in 2014.

The lawyers for Eastman said that a preliminary settlement had been reached with the class. West Virginia American Water has still not settled claims against it, but the trial was pushed back one more day to try and reach an agreement, according to U.S. District Judge John Copenhaver Jr.

Details of the proposed settlement with Eastman Chemical Co. will be filed under seal until after trial. Copenhaver still has to approve the proposed settlement.

The class action lawsuit claimed that Eastman did not properly warn Freedom Industries about safety concerns related to the type of storage tanks the company used and that it knew Freedom’s site was unsafe and did not do anything to fix it.

Anthony Majestro, the lead attorney for the plaintiffs, told the Charleston Gazette-Mail he is pleased with the settlement.

“We think it’s in the best interest of the people who were affected by this spill,” he said.

Earlier this month, Copenhaver ruled that local workers who lost only wages during the chemical spill could not continue with their lawsuits against the water company and Eastman.

“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 in the Oct. 6 opinion. “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 Maddie 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.

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

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