The Register-Herald, Beckley, West Virginia

Today's Front Page

March 26, 2011

Jury rules no medical monitoring is needed

By Andrea Lannom Register-Herald Reporter

After nearly two weeks of testimony, a Raleigh County jury determined Friday morning that students at Marsh Fork Elementary School had not been significantly exposed to coal dust from a Massey Energy silo located less than 300 feet away from the school.

In the class action lawsuit seeking medical monitoring, plaintiffs had argued that students who attended the school for two consecutive years were exposed to a hazardous amount of coal dust from the silo at the Goals Coal facility, which could have lead to latent lung ailments such as pneumoconiosis or asthma.

By way of wipe samples and monitoring from DustTrak, plaintiffs said they had proved that hazardous amounts of coal dust were getting into the school.

The defense, however, argued that not only was the dose not enough to cause these diseases, but attorneys also said that the method of measuring the coal dust was not reliable as the device could have been affected by relative humidity, causing it to over-measure.

Also, the defense argued that asthma is not latent and could not be caused by coal dust and that coal workers’ pneumoconiosis had never been presented in a non-coal worker.

Defense attorney Dan Stickler said he was not surprised at this verdict and felt that the jury made the right decision.

“They ruled on the facts presented to them,” Stickler said. “And this is the result.

“The fact that we had real, true experts who knew what they were talking about really helped,” Stickler said. “There were no surprises.”

However, disappointment and surprise were the reactions from plaintiffs’ counsel Kevin Thompson.

“I thought our evidence was irrefutable,” Thompson said. “I thought we had done enough to combat their excuses, but clearly, we hadn’t.”

The argument that the DustTrak over-measured due to relative humidity was the one fact that Thompson believes swayed the verdict of this case.

“The defense spent a lot of time talking about the relative humidity, and it was significant because that was the only question the jury answered on this verdict,” Thompson said. “Also, if you pay expert witnesses enough money, you can get them to say anything, and that is what we saw here.”

Thompson defended his experts’ use of the DustTrak monitor, saying that it was the appropriate way to measure particulate matter in the air.

“We followed the manufacturer’s suggested guidelines, and if you look into the nature of coal dust, it has a minimal absorption rate,” he said. “Scientifically, their case literally didn’t hold water.”

As far as appealing the verdict, Thompson says they will look at the record but that he doesn’t know at this point.

“We will pursue post-trial motions to set aside the verdict and look at this as tightly as one could look at it,” he said.

— E-mail: alannom@register-herald.com

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