Published: December 26, 2006 10:46 pm         

Eight-week flood trial only start of mass litigation

Top fifth story of 2006

It started in March and ended in May. And that was only the beginning trial phase of the largest mass litigation case ever to come before a West Virginia circuit court.

A Raleigh County jury spent eight weeks hearing evidence to help them answer some major questions concerning the flood of July 8, 2001, when, in less than six hours, more than 5 inches of rain fell on parts of southern West Virginia. The flood devastated areas of Wyoming, Raleigh, Fayette, Nicholas, Mercer, McDowell, Kanawha and Boone counties.

The trial, overseen by Raleigh County Circuit Judge John A. Hutchison, was only a chunk of a much larger case that involves six watersheds, and — originally — some 5,000 plaintiffs and 400 defendants.

This portion involved only the Mullens and Oceana sub-watersheds of one of those watersheds, the Upper Guyandotte. It began with 31 defendants and 900 plaintiffs, the largest number in any of the six watersheds.

Defense attorneys in this case argued that rainfall that day was so catastrophic it would have overwhelmed the land regardless of its use and that land use was reasonable. Plaintiffs attorneys argued that companies didn’t take necessary action to protect their downhill neighbors.

Foresters, meteorologists, hydrologists, and logging and mine site inspectors provided jurors with information to help them answer three main questions: Did the land use increase peak flow, that is the rate at which any rainwater on those sites ran off those sites? Did an increase in peak flow cause a material increase in the flooding of the streams? And was the landowners’ use of the land reasonable?

On May 2, after six hours of deliberation, the six jurors gave their answers: The timbering practices of Western Pocahontas Properties and Western Pocahontas Corp. did increase water runoff from their land on July 8, 2001; such an increase in peak runoff did cause the streams below them to overflow; and — perhaps most importantly — the company’s use of land was unreasonable.

But the verdict did not mean the end of the case. It meant, simply, the plaintiffs from that sub-watershed may now proceed to the next phase of litigation, during which they will seek damages from the defendants. And, still pending, are the same series of trial steps regarding the remaining flood-devastated sub-watersheds of the Upper Guyandotte and the other affected watersheds, the Coal River and the Upper Kanawha.

By the time the trial reached closing arguments, Western Pocahontas Properties and Western Pocahontas Corp. were the only remaining defendants. During the course of the trial, all of the defendants in the Oceana sub-watershed had been either dismissed on the judge’s order or they had settled their case. Likewise, several other defendants had either been dismissed or settled their case. By the end, only the two remained.

So where does the litigation stand now?

The two remaining defendants from the first trial have filed standard post-trial motions, including a motion for judgment notwithstanding the verdict and a motion for a new trial. They have written briefs and argued their points. Plaintiffs have filed their opposing briefs. Hutchison is considering those motions and is actively working toward a decision on whether to deny or grant the motions.

If he denies the motions, the case concerning only the Mullens sub-watershed will move on to “phase two,” in which individual parties will seek a determination on recovering specific damages from the two defendants.

Meanwhile, the other sub-watersheds of the Upper Guyandotte are in limbo. Parties involved in that case are waiting to hear the outcome of Hutchison’s Mullens case. They have filed motions and have scheduled hearings later in the spring of 2007 concerning what they call “RUG,” which stands for Remaining Upper Guyandotte. Pending the outcome of those hearings, a trial date could be set.

Hutchison is one of three judges assigned by the state supreme court to the overall case. The other two are Arthur Recht of Ohio County and Gary Johnson of Nicholas County.

So then there remain the watersheds of the Coal River and the Upper Kanawha.

Since September, Recht has been hearing motions to dismiss, filed by defendants in his portion of the case, the Coal River watershed. He has not yet ruled, but a written opinion is expected in the near future. If he grants the defendants’ motions, the case could be dismissed in the Coal River watershed. If he denies it, then it, too, will move toward a trial date.

Johnson will preside on the Upper Kanawha. But all trials are to take place at the Raleigh County Courthouse.

“It’s taking hours and hours of time to move it forward,” Hutchison said.

For example, on the Mullens sub-watershed portion alone, since the trial, he has received in excess of 300 typed pages of briefing material.

“I’m taking it very seriously, and I am working through that,” he said.

Hutchison said he may issue a ruling on those post-trial motions early in January.

— E-mail:

bnaudrey@register-herald.com