W.Va. SC rejects claim for medical monitoring

Steve Korris Dec. 2, 2011, 2:11pm

Chief Justice Margaret Workman

CHARLESTON, W.Va. (Legal Newsline) - Seven years of searching for witnesses and evidence didn't turn up enough of either to save a suit for medical monitoring of everyone who worked or played at Omar Elementary School in Chauncey, W.Va., since 1964.

On Nov. 16, the Supreme Court of Appeals affirmed Logan Circuit Judge Roger Perry in rejecting contamination claims against Colane Company and others.

The justices found plaintiff Norma Acord couldn't support her claim that Colane dumped poisons at the site from the 1920s through the 1950s.

"Ms. Acord needed to establish that Colane had a duty to refrain from dumping hazardous materials on the subject property and breached that duty by dumping such materials resulting in the presence of the contaminants found on the property today," they wrote. "A review of the record shows, however, that Ms. Acord was unable to produce such evidence."

They wrote that none of her four fact witnesses could identify a specific contaminant that was discarded on the property during Colane's period of ownership.

"In fact, they were unable to identify any chemical or contaminant ever discarded upon the subject property at any time in the past," they wrote.

They wrote that witness Carew Ferrell testified that he worked at Junior Mercantile store and sometimes pesticides were placed in the garbage.

"The evidence in the record indicates, however, that the ingredients found in these pesticides were not among the contaminants identified in the testing of the school grounds by the government agencies or by Ms. Acord's expert," they wrote. "Without evidence establishing the dumping of materials containing the contaminants now found at the site, Ms. Acord's claim fails as a matter of law."

They also cleared A.T. Massey Coal, Massey Energy, Massey subsidiary Omar Mining, Omar predecessor West Virginia Coal & Coke, and Cole & Crane Real Estate Trust.

The Logan County Board of Education settled with Acord last year.

In 2003, the U.S. Environmental Protection Agency and state health officials tested sites in and around Chauncey in response to reports of past dumping.

They completed testing in March 2004.

In May 2004, lawyer Kevin Thompson sued Colane and the board of education on behalf of Carlene Mowery, Edgar Franklin, and Connie Keith.

In March 2005, the state and the U.S. Agency for Toxic Substances and Disease Registry concluded that there was no apparent hazard for the present.

"No public health recommendations are needed to keep people from being exposed to harmful amounts of chemicals found at this site," they wrote.

Thompson pressed on with the suit, amending the complaint four times.

His last complaint dropped the original plaintiffs and replaced them with Acord. He added A.T. Massey, Massey Energy and Omar Mining as defendants.

Colane and the Massey defendants moved for summary judgment, and Cole & Crane Real Estate Trust moved to dismiss.

Perry granted the motions in 2009, branding testimony of plaintiff's expert Scott Simonton as rank speculation.

Perry found Acord failed to prove that Cole & Crane owned the property or controlled lessees who mined coal on its property.

Acord moved to amend judgment, pleading she discovered new evidence in the form of a Congressional staff report and a new witness in the person of Harvey Adkins.

The report criticized the toxic substance agency, and Adkins testified he emptied residue from a used calcium carbide tank at the site.

Perry ruled last year that she could have produced Adkins or the report by exercise of due diligence prior to judgment.

He found Acord never asserted that calcium carbide remnants were harmful, or even present, and that the report didn't concern the Omar School site.

Thompson and associate David Barney appealed, without success.

"Ms. Acord failed to demonstrate that she acted diligently and could not have secured the new evidence prior to the circuit court's ruling on the dispositive motions," the Justices wrote. "Moreover, it is also clear that had this evidence been available prior to the circuit court's ruling, it would not have provided a basis for the court to reach a different result."

Marshall Circuit Judge David Hummel heard the case in place of Justice Brent Benjamin, who disqualified himself.

Daniel Stickler and Jonathan Anderson, of Jackson Kelly in Charleston, represented the Massey defendants.

E.M. Kowal and Andrew Ballard, of Campbell Woods in Huntington, represented Colane and Cole & Crane Real Estate Trust.

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