In re Flood Litigation Coal River Watershed, 33664.
| Decision Date | 26 June 2008 |
| Docket Number | No. 33664.,No. 33711.,No. 33710.,33664.,33710.,33711. |
| Parties | In re FLOOD LITIGATION COAL RIVER WATERSHED. In re Flood Litigation Upper Guyandotte River Watershed Subwatershed 2a. In re Flood Litigation Upper Guyandotte River Watershed Subwatershed 2a. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Syllabus Point 2, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196(1993).
2. "A creative, innovative trial management plan developed by a trial court which is designed to achieve an orderly, reasonably swift and efficient disposition of mass liability cases will be approved so long as the plan does not trespass upon the procedural due process rights of the parties." Syllabus Point 3, State ex rel. Appalachian Power Co. v. MacQueen, 198 W.Va. 1, 479 S.E.2d 300 (1996).
3. "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
Scott S. Segal, Esq., Deborah L. McHenry, Esq., Samuel A. Hrko, Esq., The Segal Law Firm. W. Stuart Calwell, Jr., Esq., The Calwell Practice, J. David Cecil, Esq., James F. Humphreys & Associates, Charleston, WV, W. Randolph McGraw, Esq., Prosperity, WV, for Plaintiffs Below.
A.L. Emch, Esq., Jill M. Obenchain, Esq., Amber Lynn Hoback, Esq., Jackson Kelly, PLLC, Charleston, WV, for Defendants Below.
A.L. Emch, Esq., Jackson Kelly, PLLC, Charleston, WV, Amicus Curiae for Alex Energy, et al.
Richard J. Bolen, Esq., Cindy D. McCarty, Esq., Jonathan E. Porter, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, David E. Goddard, Esq., John Greg Goodykoontz, Esq., Steptoe & Johnson, Clarksburg, WV, for Western Pocahontas Properties.
These two appeals from "flood litigation" cases have been consolidated for argument and decision. In one case we hold that a jury's determination was valid. In the other case, we hold that the lower court's dismissal of the case for failure to state a claim was erroneous.
I.
Both of the instant appeals involve claims for injuries and damages resulting from flooding that occurred on July 8, 2001, in southern West Virginia — flooding that the plaintiffs allege was caused or exacerbated by timbering and/or mining operations that disturbed the watersheds lying upstream from the plaintiffs. Several thousand such claims were consolidated and assigned to the Mass Litigation Panel ("the Panel") established by this Court pursuant to Trial Court Rule 26.01. This Court previously addressed a number of certified questions that were posed by the Panel about these claims in In re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004).1
One of the two appeals involves a jury trial that was conducted by a Mass Litigation Panel judge in March, April, and May of 2006, involving a number of defendants' mining and timbering operations in the Slab Fork and Oceana sub-watersheds of the Upper Guyandotte River (the "Slab Fork case"). In the Slab Fork case, the Panel judge adopted a Trial Plan in which a jury in a "Phase I" trial was asked to answer the following "common issues" questions as to each defendant:
1. Whether, as to each Defendant's individual operation or operations, the Defendant's use of its property materially increased the peak rate of surface water runoff leaving that operation as a result of the storm events on or about July 8, 2001, compared to the rate of peak surface water runoff that would have left the operation but for the Defendant's use of that property, and if so;
2. Whether the water from the individual Defendant's operations materially caused or contributed to, the stream or streams into which they discharged to overflow their banks, and;
3. Regardless of the findings made in 1 and 2 above, whether the Defendant's use of the property in question was unreasonable under the circumstances set forth by the Supreme Court of Appeals in the case of In re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004).
Under the Trial Plan, the jury's answer to the three questions in the Phase I trial would determine whether a particular defendant could be held liable to a particular plaintiff in subsequent proceedings. Phase I of the Trial Plan excluded evidence from individual plaintiffs and other lay evidence about the flooding — limiting both sides primarily to "expert" witnesses.
Prior to and during the Phase I trial, claims against a number of defendants were voluntarily dismissed by the plaintiffs (some due to settlements), leaving the jury at the end of the Phase I trial to answer the three questions only as they applied to two related defendant companies — the appellees Western Pocahontas Properties LLP and Western Pocahontas Corporation (together, "Western Pocahontas"), whose properties were located only in the Slab Fork watershed — and had only been timbered, not mined.
The jury in the Phase I trial answered each of the three questions "Yes," finding that Western Pocahontas had materially increased the peak flow of surface water from its property, that this increase in peak flow materially caused or contributed to causing the streams in the watershed to overflow their banks, and that Western Pocahontas' use of its land was not reasonable. Western Pocahontas sought relief from the jury's verdict by way of a Motion for Judgment as a Matter of Law or For a New Trial.
On March 15, 2007, the Panel judge entered an order striking the testimony of appellants' expert witnesses (and a report that they relied upon) and granting Western Pocahontas's Motion for Judgment as a Matter of Law, The Panel judge also awarded a conditional grant of Western Pocahontas' Motion For a New Trial under Rule 59 of the West Virginia Rules of Civil Procedure on six grounds, and ruled that if this Court should reverse the order as to the granting of Western Pocahontas' Motion for Judgment as a Matter of Law, then Western Pocahontas nevertheless is entitled to a new trial on all issues.2
Before this Court, the plaintiffs in the Slab Fork case appeal the Panel judge's March 15, 2007 order. The appellants seek to have the order reversed and vacated in its entirety and seek reinstatement of the jury verdict. Western Pocahontas has cross-appealed in the Slab Fork case, raising issues that we discuss infra.
The second appeal before this Court arises from claims based on flooding in the Coal River watershed (the "Coal River case"). In that case, a different Panel judge did not permit the case to go to trial. Unlike the judge in the Slab Fork case, the judge in the Coal River case refused to allow the plaintiffs to take discovery from the defendants. Instead, the judge granted the defendants' motion to dismiss, stating that:
[the] Plaintiffs' complaints and amended complaints do not state what actionable conduct it is that any particular Defendant is alleged to have engaged in to cause of exacerbate any particular Plaintiff's alleged injuries .... [t]he complaints and amended complaints did not specify which plaintiffs were suing which defendants, which defendants' operations were at issue, or what was alleged to be improper with regard to any specific defendant operation .... [w]here strict liability does not apply, there must be an allegation of some liability-producing act or omission related to the harm alleged on the part of each party against which recovery is sought. General allegations that all defendants engaged in the normal activities associated with the conduct of their lawful businesses without any specific information as to each defendant to indicate that such activities were conducted improperly or unreasonably are insufficient.
Following is an example of the plaintiffs' allegations against one of the defendants in the Coal River case — allegations that the Panel judge concluded did not state a claim upon which relief could be granted:
a. Defendant failed to monitor, audit, and inspect timbering activities conducted on its land for compliance with BMPs (Best Management Practices industry standards);
b. Defendant failed to compare BMP compliance of timbering activities conducted on its land with state BMP surveys and failed to set benchmarks for future performance and improvement;
c. Defendant failed to implement riparian protection measures, such as marking or flagging streamside management zones (SMZs) in advance of timber harvests on its land;
d. Defendant failed to develop a program or plan for protection of streams from timbering; and
e. Defendant's timbering activities disturbed an unreasonable percentage of drainage area corresponding to one or more of the twenty-one client clusters set out in plaintiffs' April 7, 2006 Unified Disclosures.
f. Surface mining operations on defendant's land violated, and were found to be in violation of, West Virginia mining regulations intended to reduce surface water runoff and/or minimize downstream sediment deposition on July 8, 2001;
g. Defendant failed to conduct a surface water runoff analysis before, during,...
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