Supreme Court Hears West Virginia Flood Lawsuit Arguments

April 18, 2008

Lawsuits seeking damages from timber, mining and land companies for devastating 2001 floods should be revived, lawyers representing hundreds of southern West Virginia residents told the state Supreme Court on Wednesday.

But attorneys for more than 100 defendants in the lawsuits told the court that circuit court judges were correct to dismiss a case involving Coal River watershed residents and overturn a jury verdict that would have allowed about 500 people from the Mullens area to seek damages from two land companies.

The cases center on flooding that hit after up to 7 inches of rain fell across seven southern West Virginia counties July 8, 2001, causing more than $143 million in damage. Generally speaking, the suits claim that mountaintop removal mining and logging left forests unable to soak up excessive rain and caused streams and rivers to overflow.

Just one case has gone to trial, but Raleigh County Circuit Judge John Hutchison overturned the verdict, in part because he ruled two experts for the plaintiffs offered only subjective testimony and speculation.

Attorney Scott Segal tried to punch holes in Hutchison’s thinking before the Supreme Court, arguing that the experts used standard engineering used in mining, parking lot construction and even race tracks to determine that timbering activities contributed to the flooding. The only problem with the experts, Segal said, is that they don’t have experience with the timber industry.

“They (the timber industry) don’t believe that they have to worry about what happens to the downstream residents,” Segal said. “A healthy forest floor could have absorbed 10 times more rain than fell that day.”

But attorney Richard Bolen, who represents timberland owners Western Pocahontas Properties and Western Pocahontas Corp., said one of the defense experts had no experience, no education, no knowledge about the timber industry. Moreover, Bolen said that expert made mistakes such as basing his testimony on the wrong type of soil for the Mullens area.

“He made a wrong conclusion,” Bolen said. “This was dart board stuff.”

Attorney Stuart Calwell, meanwhile, attempted to convince the court that Ohio County Circuit Judge Arthur Recht shouldn’t have dismissed a case involving the Coal River watershed. Recht should have allowed the plaintiffs to get additional information rather than ruling the plaintiffs had failed to state-specific claims against the individual damages. Calwell contended that couldn’t be done without the additional information.

“If you give in to the reasoning of Judge Recht, you’re going to be standing our entire system of civil procedure on its ear,” he said.

Defense attorney Al Emch, however, said Recht’s reasoning was “extremely proper” after seeing “chaos” from the plaintiffs, especially in a case involving so many people making what Emch called general allegations. Doing so would open up golf courses, state roads and large retailers to similar liability, he said.

“You don’t want to unleash discovery in a situation like this.”

The case is being heard by Justices Joseph Albright and Larry Starcher, along with Circuit Judges O.C. Spaulding, Russell Clawges Jr., and Darrell Pratt. Chief Justice Elliott “Spike” Maynard and Justices Brent Benjamin and Robin Davis disqualified themselves from the cases. Starcher was absent from the courtroom Wednesday.

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