West Virginia Judge in Massey Case Again Accused of Conflict

July 22, 2009

A West Virginia judge is accused of “cronyism at its worst” in handling a lawsuit that claims Massey Energy poisoned hundreds of wells with coal slurry, and the angry plaintiffs are demanding he step aside for failing to disclose a friendship with Massey’s chief executive and putting another friend in charge of a medical monitoring fund.

The recusal motion filed in Mingo County Circuit Court says Judge Michael Thornsbury has personal and financial conflicts of interest, participated in illegal out-of-court communications with Virginia-based Massey’s lawyers, deceived plaintiffs into waiving their right to seek legal fees and created “an atmosphere of bias that has permeated all levels of court personnel.”

In recent months, plaintiffs’ attorney Kevin Thompson argues, that bias has even prevented his team from obtaining transcripts and other documents until Massey had signed off on them.

“These facts would cause any objective person to harbor doubts concerning his impartiality,” the motion says.

Thornsbury said the complaint contains several false allegations, and his secretary, Shelley Kelley, said he will respond to them in writing later this week. Massey spokesman Jeff Gillenwater also said the company will respond in court

The motion, filed last Friday, is the latest court filing to accuse Blankenship of having an appearance of impropriety with a West Virginia judge.

In June, the U.S. Supreme Court concluded that state Supreme Court Justice Brent Benjamin should have recused himself from Massey’s appeal of a $50 million verdict involving Harman Mining Corp. because Blankenship had spent $3 million to help elect him.

Earlier, Harman’s lawyers unearthed photos showing Blankenship on the French Riviera in 2006 with then-chief justice Elliott “Spike” Maynard, who recused himself and lost re-election four months later.

Some 550 current and former residents of Rawl, Lick Creek, Sprigg and Merrimac are suing Rawl Sales & Processing, a Massey subsidiary, for injecting an estimated 1.4 billion gallons of coal slurry into worked-out underground mines between 1978 and 1987. Slurry is the wastewater produced when coal is washed to help it burn more efficiently.

The residents claim their wells were tainted after slurry seeped through cracks in the earth and into aquifers. They say decades of exposure caused developmental problems and put them at risk of cancers and other health problems. Massey has denied any wrongdoing and defended the practice as legal.

At an April hearing that lasted until midnight, Thornsbury handled individual settlements with what were then about 750 plaintiffs. Some had traveled to southern West Virginia from as far as California and Florida with less than 72 hours notice.

Thornsbury told them no one was obligated to settle, but he warned the plaintiffs that in his experience, “very few have fared better at trial than they did at the settlement conference.”

The motion lays out a larger pattern of alleged conduct that the plaintiffs say shows “these proceedings are rife with appearances of impropriety,” including Thornsbury’s failure to disclose that he and Blankenship are friends.

The two have been seen sharing meals at a restaurant near the courthouse, most recently after mediation in the case had failed in April, the complaint says.

“At no time has the judge admitted to this relationship,” the motion says. “Moreover, he has acted to protect Mr. Blankenship from testifying in the matter, despite the fact that Mr. Blankenship personally ordered the injection of coal slurry.”

Thornsbury also appointed his former campaign manager and business partner, Dr. C. Donovan Beckett, as administrator of a multimillion-dollar medical monitoring fund that Massey agreed to create to screen plaintiffs.

The motion says Beckett and the judge are partners in Williamson Renaissance Development LLC and co-debtors on a $1.6 million deed of trust through Community Trust Bank, which has been named trustee of the medical fund.

Both Beckett and the bank “have the potential to charge substantial fees for many years,” the motion says, because the judge signed an order allowing open-ended fees rather than the fixed 1.25 percent of the trust recommended by Massey’s insurance attorneys.

Though Beckett’s fiduciary responsibility should be to the plaintiffs, the motion says they have learned since the June 17 appointment that Beckett is also a contractor for Massey.

“Appointment of Dr. Beckett — business partner and campaign manager — is cronyism at its worse … and a slap in the face to the plaintiffs,” the motion says.

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