On July 8, 2001, in less than six hours, more than 5 inches of rain fell on parts of southern West Virginia. The flood devastated areas of Boone, Fayette, Kanawha, McDowell, Mercer, Raleigh, Wyoming and Nicholas counties.

Now it seems the Raleigh County Courthouse is being flooded with paperwork, attorneys and an increase in workload — all in preparation for the beginning stage of one of West Virginia’s largest mass litigation cases, to take place in Raleigh County next month.

“But it’s nothing we haven’t been able to handle so far,” Raleigh County Circuit Clerk Janice B. Davis said.

Early on, 489 plaintiffs — residential property owners — sued 78 defendants, including coal and timbering companies, landowners, lessors, railroads and gas companies involved in various ways with the removal of natural resources. Now, more than 5,000 plaintiffs claim some 400 defendants used their land in a way that contributed to massive flood damage.

But perhaps the only thing more massive than the flood damage is the amount of work going on in Raleigh County to prepare for the first leg of the case.

Davis’ office manager, Paul Flanagan, said the office has scanned and filed some 60,000 pages from more than 6,000 documents for this case since the fall of 2004. More than 20,000 pages were filed between Dec. 16, 2005, and Jan. 24.

“It’s obviously over and above just the normal filings that we have on all the other cases,” Flanagan said. “It’s a massive undertaking and a unique undertaking for the whole Raleigh County court system.”

Davis’ office estimates it will be dealing with some 10,000 exhibits.

But the impact goes beyond the courthouse. An extra 435 jurors have been subpoenaed to the Raleigh County Armory — the courthouse isn’t big enough to accommodate them all — on March 6 for juror orientation. There are so many attorneys involved that the panel from which they will strike has to be at least 180 just to arrive at a jury of six and a few alternates who will serve on a trial expected to last six weeks.

Security screening for potential jurors as they enter the armory will take additional manpower from the sheriff’s department. And since the case is expected to last six weeks, two circuit judges and their staffs will be doing the work of three while the third presides over this one case.

Additionally, the county is in the process of reconfiguring the courthouse’s largest courtroom just to accommodate all the lawyers. And the state Supreme Court is working to provide live Internet feeds for interested attorneys at remote locations.

“We’re obviously doing our very best to pre-plan and anticipate as much as we can so that all will go as smoothly as possible,” Flanagan said. “It’s somewhere between exciting and scary.”

The first lawsuits in the 2001 flood case were filed as early as two weeks after the storm. But they kept coming.

Eventually, the cases were referred to a mass litigation panel created by the state Supreme Court. Six judges are assigned to the panel by the chief justice. They are charged with determining whether a group of cases that arise out of a single event or have similar issues fit the criteria for a mass litigation case, as opposed to a class action suit. Other mass litigation has concerned asbestos, prescription drug cases and railroad company carpal tunnel cases, for example.

Raleigh County Circuit Judge John Hutchison sits on the panel, which is also charged with developing a procedure to assist in finding a reasonable resolution to all of these cases.

Two judges are appointed to the panel each year, and any can be reappointed. Hutchison has served on the panel since 1996. And he will serve as the judge in the first part of this flood litigation.

He explained that three judges charged with presiding over this litigation have broken down the lawsuits into six watersheds: Tug Fork, Upper Guyandotte, Upper and Middle New, Lower New, Upper Kanawha and Coal River. Each of those watersheds has sub-watersheds.

This upcoming trial — which starts March 6 — will focus on only two sub-watersheds of the Upper Guyandotte watershed: Mullens and Oceana. The rest will come later this year.

“We estimate the number of potential plaintiffs in all six of the major watersheds, with eight or nine sub-watersheds in each one, to be between 5,000 and 8,000,” Hutchison said. The total number of defendants — after several are dismissed — could be somewhere between 400 and 500.

But this first part of the case, the Upper Guyandotte phase concerning Mullens and Oceans, has only 31 defendants and 900 plaintiffs, the largest number in any of the six watersheds. That does not include any third parties or cross-complaints; that may be phase two.

Three judges have been assigned to the overall case: Hutchison, Arthur Recht of Ohio County and Gary Johnson of Nicholas County.

Hutchison will preside on the Upper Guyandotte, Recht will preside on the Coal River, and Johnson, the lead judge, will preside on the Upper Kanawha. Those three watersheds include the majority of the plaintiffs, probably 85 to 90 percent of them. But all three trials will take place at the Raleigh County Courthouse.

Raleigh County appeared to be the most reasonable spot, Hutchison said. Not only was most of the flood damage within 40 miles of the courthouse, but Raleigh County has hotels and accommodations for all those involved.

Already, the judges have been to the Supreme Court, trying to figure out what the obligation of the defendants will be if they’re found liable, among other things.

The Supreme Court recognized that such a rainfall event was unusual and unforeseeable, so it addressed how the defendant’s conduct may come in to play. The court said a landowner can only be liable if engaged in conduct on their land that is not reasonable. It also said a jury will have to determine if whatever the property owners were doing materially increased the flow of the water off their property and if the increase materially increased the flooding of the streams.

Then, if the jurors find that the landowners’ conduct increased flow and/or increased flooding, they must determine what is reasonable use. If a landowner’s use of the land is deemed reasonable, then there can be no liability.

If the jury says it was unreasonable, then the individual plaintiffs will be allowed to move forward in proving negligence, damage and the defendants’ obligations to them.

Basically, what the jury will spend an estimated six weeks hearing is a battle of the experts.

But the proceedings will help the panel get the litigation down to a manageable number of people, possibly taking 10 or 12 plaintiffs from the same area and trying their cases together in various circuits, Hutchison explained.

What jurors won’t be doing is making a social determination regarding whether mountaintop removal and clear-cutting are good or bad, Hutchison said.

“It has to relate to the social utilization, and was it done reasonably,” he said. For now, the evidence will have to stick to those three main issues the Supreme Court has asked the jury to determine.

Hutchison said the Raleigh County Commission deserves kudos for helping make it possible to undertake such a major case in the county’s courthouse. Credit also goes to his office staff, the clerk’s office, the other judges’ offices for picking up Hutchison’s docket when he’s busy with the flood case, and the Supreme Court for providing assistance.

“It’s affecting every judge, every clerk, the circuit clerk’s office, the maintenance guys reconfiguring the courtroom, the security, everyone in this courthouse,” Hutchison said.

“We are the first ones having to plow all the fields,” he said. “Those going behind us will hopefully have it a little easier. ... It’s a major, major case.”

When one considers that between 2,300 and 2,400 cases are filed in Raleigh County in a typical year, with a minimum 30 to 40 pages of documents in each of those cases, it’s overwhelming to think one case has produced more than 60,000 pages of documents, said Vickie Hylton, Hutchison’s law clerk.

She wonders if this case might lay the groundwork for what southern states may soon be dealing with for Hurricane Katrina victims.

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bnaudrey@register-herald.com