The Register-Herald, Beckley, West Virginia

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March 16, 2011

Testimony begins in Marsh Fork silo lawsuit

CHARLESTON — Testimony began Tuesday before Raleigh County Circuit Judge H.L. Kirkpatrick in a medical monitoring case which alleges that Marsh Fork Elementary children could have been exposed to coal dust from a Massey Energy’s train-loading silo.

The class action lawsuit, represented by Woody and Elva Dillon, deals with children who attended Marsh Fork Elementary from 2003 to 2004.

In his opening statement, plaintiffs’ attorney Kevin Thompson told the jury that the court should allow medical monitoring to show if children could have a latent disease, which he believes would be directly caused by the corporation.

Thompson explained that children are at risk and said the company was negligent for building a silo “50 times bigger than their former hopper and built it twice as close.” The silo, he says, is 78 yards from the school.

“We have proved coal dust to be in the school and proved the dust is from the silo and that the dust contained coal,” Thompson said. “We have done this from wipe samples at the school.”

These wipe samples are said to include particulate matter small enough to enter into a person’s lungs. To determine the particles’ origin, Thompson said they have conducted Dust Trak monitoring, which measures particulate matter. By this monitoring, Thompson says they were able to determine that the dust was Massey’s.

“There has been black substance on the playground equipment which has tested positive for PAH, which is part of coal,” Thompson says. “They will argue that PAH is everywhere, but it’s the same in coal dust and the school is 78 yards away from the silo.”

Thompson also alleged that the silo is not fully enclosed.

“The dust is coming from somewhere,” he said. “The dust is coming from the silo.”

Defense attorney Dan Stickler showed the jury a photo of both the new and old silos. He said the coal dust could have emanated from the old silo, but that the new one is upgraded and there is “no open storage.”

This silo is built to permit specifications, he explained, and there has never been violations of that permit the entire time the silo has been there.

“There’s not a lot of coal dust in that silo,” he said. “It’s fully contained.”

Stickler also charged that the plaintiffs had five years to monitor the interior of the school for particulate matter but they chose not to do so. He explained that the silo is heavily inspected by the Division of Air Quality and the EPA.

“This is the most inspected facility in the world,” he explained. “The EPA said there was no problem with the silo in relation to the school.”

Addressing Thompson’s charge of building the new silo closer to the school, Stickler argued that regardless of how close the silo is, the construction was improved significantly.

He recommended the court to rule against medical monitoring because the tests themselves would be “unnecessary” since no one outside of the coal mining work environment has developed pneumoconiosis.  

“What medical monitoring means is that there will be one X-ray per child and then they will follow up with another X-ray five years down the road.”

Stickler also explained that the PAHs present on the playground equipment could have even been caused by car exhaust.

“Also, (Thompson) says (the children) have been significantly exposed,” Stickler said. “How do you determine that? By testing. And an increased risk of latent disease? They cannot find any case from a person who has contracted pneumoconiosis. They have not been able to do that.”

At this, Stickler referred to a photo taken of the inside of the silo.

“Where’s this coal dust? It’s not there,” he said. “Make them prove it’s there.”

Following opening statements, Thompson called the plaintiffs’ first witness, Dr. Dewey Sanderson, a professor of geology at Marshall University. Sanderson is an expert is microscopy, creation and preparation of slides and identification of coal particles.

As Thompson displayed several pictures, Sanderson pointed out that the wipe samples from the school contained everything from mineral fragments, grains of sand, fibers and little grains of coal.

Thompson asked him if these photos proved particles of coal were in the school and Sanderson said it did.

On cross-examination, Stickler asked Sanderson to clarify if his role was limited to looking at the slides and Sanderson said it was.

“It wasn’t to quantify how much was there, how long it was there or how long it took to get there, right?”

Sanderson said that it was not. Stickler then asked if Sanderson was able to identify the source of the coal particles and Sanderson said, once again that he was unable to do so.

Prior to opening statements and testimony, pre-trial motions were also heard Tuesday. Kirkpatrick ruled that there would be no reference to the plaintiffs’ attorney who was from out-of-state, that there would be no personal attacks and there would be no reference to threats of jobs or businesses.

Kirkpatrick also granted a motion that there would be no testimony about personal injury since the case refers to latent diseases, meaning that a person could have a disease but not know it.

Stickler argued that excluding this evidence would place a huge burden on the defense because the plaintiff is saying that a person has a risk to the disease but “can’t point to a single person who is diagnosed with it.”

Kirkpatrick said he would stick with the Bower case law, which does not include present injury as proof.

Testimony continues at 9 a.m. today.

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