WV water crisis case pushed back again

by Kate White and Ken Ward Jr., originally posted on October 25, 2016


A federal judge late Tuesday again pushed back the trial in the class-action lawsuit over the 2014 Kanawha Valley water crisis.

After another closed-door meeting with U.S. District Judge John Copenhaver Jr. Tuesday evening, attorneys for all sides said that a status conference in the case would be held at 9 a.m. today.

Earlier Tuesday, attorneys had indicated that they expected to be picking a jury starting this morning.

The trial had been set to begin with jury selection Tuesday morning, but the judge has urged lawyers to continue trying to reach a settlement.

It’s not clear whether Copenhaver still will rule this morning on a series of important pretrial rulings — including whether testimony about a key West Virginia American Water Co. document will be held in a closed courtroom.

More than 224,000 residents and more than 7,300 business owners are part of the class of plaintiffs suing West Virginia American Water and Eastman Chemical over their roles in the contamination of the region’s drinking water following the January 2014 spill.

In the case, lawyers for residents and businesses across the Kanawha Valley allege that West Virginia American did not adequately prepare for or respond to the Jan. 9, 2014, spill of Crude MCHM and other chemicals from the Freedom Industries chemical tank facility, located just 1.5 miles upstream from West Virginia American’s regional drinking water intake in the Elk River.

In particular, pretrial filings from the plaintiffs have focused on West Virginia American’s failure to keep adequate backup treated water on hand for emergencies like the chemical spill and the company’s lack of a secondary water intake.

The lawsuit alleges that Eastman, which manufactured Crude MCHM and sold it to Freedom, did not properly warn Freedom about safety concerns related to the type of storage tanks Freedom used.

The lawsuit also alleges that Eastman knew the Freedom site was unsafe and did nothing about it.

Eastman and West Virginia Water are expected argue that the drinking water contamination was Freedom’s fault because the company’s poor practices — resulting in multiple criminal Clean Water Act pleas by former Freedom officials — led to the spill in the first place.

It had appeared on Monday evening that progress was being made toward some sort of a settlement, in part because Copenhaver delayed jury selection from Tuesday until today and scheduled Tuesday’s hearing for what lawyers described somewhat mysteriously as “pretrial matters.” During the hearing though, Copenhaver made no rulings on a long list of motions about what evidence can be presented at trial, saying he would announce those decisions today.

After the hearing, the judge ordered lawyers for all sides back into a private session in his chambers. After meeting for less than 30 minutes with the judge, the lawyers left the Robert C. Byrd U.S. Courthouse to have further talks at the downtown offices of Jackson Kelly, one of the law firms representing the water company.

The attorneys returned to the courthouse at about 2 p.m. and met privately with the judge again for about 30 minutes. Then most of them left, indicating that they were preparing for jury selection and a trial.

At about 6 p.m., lawyers said the judge had again pushed back jury selection. The court’s online calendar also changed to reflect the status conference set for this morning.

Copenhaver has insisted to all sides that a settlement would have to resolve not only the case pending for trial — known as Crystal Good v. American Water — but also a number of state court cases pending before the Supreme Court’s Mass Litigation Panel and several other pending federal court cases over the spill.

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