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Tuesday, October 15, 2019

W.Va. federal judge consolidates water crisis lawsuits

By Chris Dickerson | Apr 28, 2014

CHARLESTON, W.Va. (Legal Newsline) - A federal judge has consolidated the dozens of lawsuits filed over the January chemical spill that affected the drinking water of more than 300,00 West Virginia residents.

On April 18, U.S. District Court Judge John Copenhaver combined the requests of plaintiffs in the 62 separate cases to move them back to state court. Copenhaver's order basically consolidates the cases to determine if they will continue in federal or state court.

"Our court of appeals affords broad discretion to district courts in assessing the desirability of consolidation, recognizing the superiority of the trial court in determining how best to structure similar pieces of litigation," Copenhaver wrote. "It has, however, provided guidelines for exercising that discretion.

"Those guidelines essentially balance the specific risks of prejudice and possible confusion with the potential for inconsistent adjudications of common factual and legal issues and the burden on available judicial resources posed by multiple lawsuits. Efficiency from a time and cost perspective are also considered.

"The risk of inconsistent adjudications, substantial expense to the parties, and inefficient use of court resources markedly increases here if the court declines consolidation at least to some extent."

On Jan. 9, an estimated 10,000 gallons of crude MCHM leaked from Freedom Industries' Etowah River Terminal along the Elk River. More than 300,000 residents in parts of nine counties who use West Virginia American Water Company were without tap water for days, and many still are wary of using the water. WVAWC's intake facility along the Elk River is just more than a mile downstream from the leak site.

The week after the leak, Freedom Industries filed for bankruptcy, effectively halting lawsuits filed against the company. As a result, many plaintiffs have since removed Freedom as a defendant in the lawsuits.

Freedom and WVAWC want the cases in federal court.

Court documents show there have been 62 lawsuits filed over the leak. Of those, 38 seek class-action status. And all of the complaints have claims similar claims such as bodily injury, emotional distress, annoyance, loss of enjoyment, nuisance, inconvenience, requests for medical monitoring, lost income and loss of business revenue.

Of the complaints already filed in various state and federal courts, some list Freedom and WVAWC as defendants and others list just Freedom or just WVAWC. Some also list Eastman Chemical, which produces the crude MCHM. Freedom Industries filed for bankruptcy Jan. 17.

Earlier this month, he Kanawha-Charleston Health Department's board of directors voted to join a lawsuit to be filed by the City of Charleston and other government groups to recoup more than $200,000 it lost as a result of the chemical leak.

And, Putnam County commissioners say they might file another lawsuit to get the MCHM wastewater-sawdust mixed out of a Hurricane landfill.

Officials say the county has been talking to Waste Management, which owns the landfill near Hurricane. Waste Management officials say the state Department of Environmental Protection, which allowed the mix to be put in the landfill, won't let it be removed.

Last month, Putnam County and the city of Hurricane filed a lawsuit seeking to force the DEP to stop the disposal of the material at the landfill. The case soon was dropped when Waste Management changed the end date for its permit to dispose of the material there to March 26. When he dismissed the case, Kanawha Circuit Judge Paul Zakaib didn't rule on whether the material already dumped had to be removed.

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