By Andrea Lannom
April 10, 2018 - West Virginia Supreme Court has ruled in favor of Gov. Jim Justice's companies in a lawsuit alleging water contamination of private wells.
West Virginia Gov. Jim Justice speaks during a news conference at the Capitol building in Charleston, West Virginia.
The case comes out of Wyoming County, where 16 families sued Mechel Bluestone Coal Company and Dynamic Energy for well water contamination. Families who filed the lawsuit said they had discovered the presence of lead and arsenic in their water.
In May 2016, a six-person jury returned a verdict absolving Mechel Bluestone Coal Company of responsibility for well water contamination. Justice sold Mechel Bluestone in 2009 to Russia's OAO Mechel, but bought it back in February 2015.
Families appealed a January 2017 order refusing their motion for a new trial.
In an opinion released last week, the state's high court found no error in the lower court's ruling that favored the companies. The court remanded the case back to circuit court to decide whether the companies complied with an order to provide replacement water to families.
On appeal, families alleged jury interference and witness intimidation, a disqualifying relationship between a seated alternate juror and a corporate representative of the coal company, and that a verdict was awarded in favor of the defense despite the weight of the evidence.
Families said the circuit judge erred by not finding the presence of UMWA members in the courtroom improper. They alleged union members improperly interfered with the jury and intimidated one of their witnesses.
Dynamic Energy argued that it did not request UMWA members to be in the courtroom and that it did not impede the right to a fair trial.
The court ruled there was no evidence Dynamic Energy solicited UMWA members to attend the trial.
“Neither do we find the presence of spectators supporting the defendants at trial to be any more damaging to the parties' right to a fair trial than the presence of spectators supporting the plaintiffs,” the opinion said.
The families also argued that union members intimidated one of their witnesses, who they say told them that during his employment at Dynamic Energy, he had illegally buried slurry outside the areas designated by the company's mining permits. The families believed the slurry caused or contributed to water contamination.
They claimed UMWA members immediately surrounded the witness when he entered the courthouse to testify and caused him to change his testimony. They did not end up calling him to testify.
The court ruled that because the witness did not testify during the trial, it is uncertain whether his testimony had changed.
Plaintiffs also claimed on appeal that a defense corporate representative had served as a pastor for one of the seated jurors.
The court ruled the judge did not err by refusing to remove him from the jury and did not abuse discretion by refusing to award plaintiffs a new trial based on the relationship.
Dynamic Energy appealed a different order where the judge refused to dissolve a preliminary injunction requiring the company to provide replacement water to families.
Plaintiffs had invoked water replacement provisions of the West Virginia Surface Coal Mining and Reclamation Act. The judge granted the requested relief and issued a preliminary injunction, requiring Dynamic Energy to provide replacement water.
The opinion said during oral arguments of the case, parties informed them that Dynamic Energy violated the order and had stopped providing replacement water. Dynamic Energy claimed it could not afford to provide replacement water because it was spending about $35,000 a month to do so.
The court decided that the preliminary injunction should have been dissolved. They reversed the circuit court's ruling. However, the court remanded the case back to Wyoming County Circuit Court to decide whether Dynamic Energy complied with the order.
“Although we find that the circuit court should have dissolved the injunction upon receipt of the DEP's July 21, 2016, letter relieving Dynamic Energy of its replacement water obligation, the injunction nevertheless continued in effect during the pendency of the instant appeal by virtue of the circuit court's January 20, 2017 ruling continuing the same," the opinion said.
“As such, it is clear that, by refusing to provide replacement water service as the circuit court had ordered it to do, Dynamic Energy ignored the court's direct command when it, unilaterally, stopped providing replacement water service," the opinion said.
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