On June 26, 2007, the West Virginia Supreme Court of Appeals issued a per curiam decision in the Mass Litigation Proceeding known as In Re: Flood Litigation (Civ. Action No. 02-C-797, Raleigh County Circuit Court), reversing separate rulings issued by Circuit Court Judges Recht and Hutchison that would have substantially limited plaintiffs' ability to go forward with such claims. Due to disqualifications, the Court that released this unsigned opinion included three Circuit Court Judges sitting by special assignment, with only two elected Justices, Starcher and Albright, participating in the decision.
In one of the rulings addressed by the Court, on March 15, 2007, Judge Hutchison (who was selected to preside over claims arising in the Upper Guyandotte Watershed) set aside a jury's decision against the two remaining defendants on certain threshold liability issues in the first Upper Guyandotte sub-watershed trial, completed in May, 2006. The Judge based his ruling on a number of apparent errors, including the admission of testimony by witnesses who should not have been permitted to testify as experts. As to that ruling, the Supreme Court held that Judge Hutchison should not have vacated the Phase I liability finding and should not have granted defendants a provisional new trial. Specifically, the Court found that regardless of whether plaintiffs' two experts were considered "scientists" or technical experts, their opinions were based on more than "rank speculation or imagination," and given the "liberal thrust" of the rules favoring admission of expert testimony, they should not have been excluded retroactively after the jury rendered its verdict against the defendants.
The second ruling involved a decision by Judge Recht to dismiss all claims asserted by plaintiffs residing in the Coal River Watershed, based on plaintiffs' failure to provide sufficient pre-trial disclosures to support the assertion of any causes of action against any specific defendants. In reversing that decision, the Supreme Court determined that the plaintiffs made sufficient allegations against defendants in their numerous, identical complaints to allow them to proceed with that case, ruling that plaintiffs need only "plausibily suggest" that there are sufficient facts to support their allegations.
Both cases were remanded to the Mass Litigation Panel, a unique West Virginia tribunal created by the Supreme Court (through Trial Court Rule 26.01) for the purpose of more efficiently managing cases involving "mass litigation" as defined therein. Whether Judges Recht and/or Hutchison will continue to participate as Judges assigned to the Flood Litigation Panel and presiding over these particular watershed grouping of claims is unclear.
In Re: Flood Litigation involves more than 50 complaints filed on behalf of some 2,400 individual plaintiffs, against about 100 defendants engaged in coal mining, timbering, oil & gas development, and miscellaneous other businesses, seeking damages from flooding that occurred on July 8, 2001 throughout southern West Virginia. The complaints assert that because of the manner in which the defendants altered the surface of the land (and therefore, drainage patterns), the heavy rainstorms that occurred on or about that date created more severe flooding and heavier resultant damages to plaintiffs than would have been the case had the land been left in its natural state. Additional civil actions have since been filed against similar groups of defendants in various counties based on identical claims, stemming from later floods; however, none of those cases has been referred to the Mass Litigation Panel.