Wednesday, September 28, 2016

A federal judge ruled Monday that hundreds of thousands of those affected by the Elk River spill cannot pursue claims against West Virginia American Water’s parent company

Judge keeps corrosion claims against Eastman in water crisis case

Ken Ward Jr. , Staff Writer
September 26, 2016

AP file photo
The West Virginia American Water Co. intake facility on the Elk River in Charleston as seen on Jan. 10, 2014, the day after the Freedom Industries chemical spill. A federal judge ruled Monday that hundreds of thousands of those affected by the spill cannot pursue claims against West Virginia American Water’s parent company, one of several rulings expected before a trial next month.

In one of a series of rulings expected to define the scope of a class-action trial scheduled to start in late October, a federal judge on Monday declined to throw out allegations that partly blame the January 2014 Elk River chemical spill on Eastman Chemical, the maker of Crude MCHM that spilled from the Freedom Industries facility just upstream from the region’s drinking water intake.

U.S. District Judge John T. Copenhaver Jr. issued another ruling, though, that residents, businesses and workers suing over the spill and the water crisis that followed cannot pursue claims against American Water Workers Company Inc., the parent of West Virginia American Water Co., whose customers’ drinking water supply was contaminated in the incident.

The rulings were among the first in a long list of decisions expected from Copenhaver this week in response to dozens of pre-trial motions filed in the case. Jury selection for the trial is scheduled to start on Oct. 25.

In the case, lawyers for hundreds of thousands of residents, businesses and wage earners in the Kanawha Valley allege that West Virginia American did not adequately respond to the Jan. 9, 2014, spill of Crude MCHM and other chemicals from the Freedom Industries facility along the Elk River, just 1.5 miles upstream from West Virginia American’s regional drinking water intake. The suit also alleges that Eastman, which manufactured the chemical MCHM and sold it to Freedom, did not properly test the chemical or warn buyers or the public about any potential health impacts or possible safety concerns related to the type of storage tanks Freedom used.

Last year, Copenhaver approved the case being pursued as a class-action over the liability, or fault, of the water company and Eastman. The judge did not certify a damages class, meaning damages would have to be determined later, on some case-by-case basis.

In the ruling concerning American Water Works, Copenhaver concluded that the plaintiffs had not shown that the parent company’s “limited involvement in the affairs” of West Virginia American “generated a duty” to the subsidiary’s customers of that “American carried out a specific act such that it was itself liable for tortious conduct.”

“Nor do plaintiffs show that American should be liable because it committed a tort in concert with [West Virginia] American, or directly and specifically ‘forced’ [West Virginia] American to commit a tort,” the judge wrote.

Lawyers for the class suing in the case had argued that American Water Works had played a role in designing and under-financing the Kanawha Valley water treatment and distribution facility, including a decision decades ago to not maintain a second drinking water intake, located upstream from the Freedom industrial site, that could have provided a backup water supply following the 2014 spill.

Regarding Eastman Chemical, the plaintiffs allege that did not properly instruct Freedom Industries officials about the proper storage of Crude MCHM, a move that led to the chemical being stored in a carbon steel tank that the chemical corroded, causing the spill.

Eastman attorneys wanted those allegations thrown out, arguing that the plaintiffs’ expert testimony on the issue was not scientifically sound and therefore not admissible in court. In response, the plaintiffs had argued that an Eastman expert’s testimony was likewise not admissible.

Copenhaver ruled that the testimony from both experts was “sufficiently reliable and relevant as to be admissible,” and rejected Eastman’s motion to rule in the company’s motion for summary judgment on the Crude MCHM issues.