Plaintiffs lose coal dust case in West Virginia

Jessica M. Karmasek Apr. 19, 2011, 10:50am

CHARLESTON, W.Va. (Legal Newsline) - A West Virginia jury last month rejected a claim for medical monitoring by a group of plaintiffs who alleged they were exposed to toxic coal dust from a nearby Massey Energy Co. processing plant and silo.

According to the Beckley Register-Herald, a Raleigh County Circuit Court jury found on March 25 -- after a two-week trial -- that students at Marsh Fork Elementary School were not exposed to a hazardous amount of dust from the silo, which sits less than 300 feet from the school.

The suit, filed on behalf of Woodrow and Elva Dillon and their two children, accused the coal giant and subsidiaries Goals Coal Co., AT Massey Coal Co. and Massey Coal Services Inc. of negligence and "creating a public nuisance."

It demanded unspecified punitive damages, as well as a court-administered medical monitoring program.

Judge Harry L. Kirkpatrick III granted class action status to the case in December 2009. However, it fell in limbo because his ruling went to an incorrect address and was returned to the courthouse in Beckley.

Goals Coal has operated the silo since November 2003, and the plaintiffs argued more than 300 students and faculty members might have been affected by the dust.

The plaintiffs also argued that the long-term exposure put students and faculty at risk of developing health problems.

Residents have long complained about the school's proximity to the silo and a dam that sits above the school and holds gallons upon gallons of coal slurry.

However, last year the state School Building Authority said it would provide the remaining money needed to replace the 70-year-old school. In addition, Massey and the county school board have pledged $1.5 million for the project, and Los Angeles-based Annenberg Foundation is donating $2.5 million. Construction on the new school was expected to begin this year.

Medical monitoring requires defendants to pay medical costs even in the absence of a current injury.

In addition to West Virginia, supreme courts in Massachusetts, Missouri, Pennsylvania and Utah have all allowed medical monitoring as a form of relief. The Alabama, Nevada, Kentucky, Michigan, Mississippi, New Jersey and Oregon supreme courts have all chosen not to recognize medical monitoring claims.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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