Judges Limit What Slurry Victims’ Lawyers Can Say in W.Va. Case

By VICKI SMITH | July 26, 2011

Three judges who will hear a coal slurry pollution lawsuit against Massey Energy have declared any reference to a deadly 2010 mine explosion off limits for the August trial and ordered the plaintiffs’ lawyers to avoid inflammatory phrases including “poison” or “toxic soup” in opening statements.

In a series of rulings late Friday, the judges said words and phrases including “forgotten communities” can be used, but only in closing arguments against Massey and a subsidiary, Rawl Sales & Processing.

Massey had argued the phrases are prejudicial, irrelevant and of no help to jurors.

Plaintiffs’ attorney Van Bunch said his team has never described their clients’ towns as “forgotten communities,” explaining the reference comes from a sign that residents erected themselves. When they tried to fight Massey, he said, they were ignored. When they complained to state regulators, they were ignored. The state didn’t supply them clean drinking water until the lawsuit was filed.

“These are poor people. They don’t vote. They don’t pay taxes. They live on the dole,” Bunch said. And they got “no attention from any sector of our society” until this lawsuit.

“We don’t call them ‘forgotten communities,”‘ Bunch said, “but if we want to, we sure should be able to.”

The judges delayed ruling on Massey’s request that other topics be excluded from evidence, including problems it has had with coal slurry at underground injection sites and at an impoundment that failed in Kentucky in 2000. Nor did they immediately rule on whether the plaintiffs can discuss litigation between Massey and the U.S. Environmental Protection Agency.

Some 700 current and former residents of Rawl, Lick Creek, Sprigg and Merrimac claim that Massey and Rawl contaminated their water supplies by pumping 1.4 billion gallons of toxic coal slurry into worked-out underground mines between 1978 and 1987.

Slurry is created when coal is washed to help it burn more cleanly. The residents say it seeped out of the old mine workings and into their aquifer, turning their well water varying shades of red, brown and black, and causing a variety of ailments.

Jury selection in the 7-year-old lawsuit is set for Aug. 1, and the rulings help shape how the trial will play out. A final attempt to avert the trial is set for next week, when two other judges who serve on the state’s Mass Litigation Panel will try to mediate a settlement in Charleston. For now, the three trial judges are pushing ahead.

They also ruled Friday that the plaintiffs can present medical bills and other evidence of illness as they try the first seven cases, which involve nine polluted wells and 17 residents. The plaintiffs cannot introduce newspaper and magazine articles about Massey except to impeach a witness.

The panel has yet to rule other critical issues, however, including whether the parent corporation should be held liable for the actions of a subsidiary it claims operated independently.

Massey contends Rawl had its own managers, board meetings and finances. Attorney Jon Anderson argued ownership and a shared interest in success are not enough to hold Massey responsible for everything Rawl did. Massey is now owned by Virginia-based Alpha Natural Resources.

But the plaintiffs say former Massey CEO Don Blankenship “cut his teeth” at Rawl and remained intimately involved in all his companies as he rose through Massey’s ranks.

Blankenship was Rawl’s comptroller in 1982 and was busting unions for Massey by 1984.

“He learned at Rawl that he had to determine how far he could stretch the operations of the company before the law beat you back,” Bunch said.

Rawl is also where he first demonstrated his hands-on management style, fellow attorney Bruce Stanley argued.

Stanley said Blankenship acknowledged in a recent deposition the reason that employees sometimes found cans of Dad’s root beer on their desks: Dad’s stood for “Do as Don says.”

“This all circles back to a management style,” Bunch argued. “There’s no basis to take this away from the jury.”

Blankenship retired from Massey in December and currently lives in Johnson City, Tenn. If the plaintiffs prevail and win damages, Stanley said, someone must be on the hook for damages: “Massey needs to be answerable.”

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