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Well-poisoning trial set for Aug. 2011

WHEELING, W.Va. -- Hundreds of Southern West Virginia residents who claim Massey Energy Co. poisoned their wells and made them sick by pumping coal slurry underground will get their day in court next year -- and a chance to settle the case this fall.

A mass litigation panel handling the long-delayed lawsuit against Virginia-based Massey and subsidiary Rawl Sales & Processing set a trial date of Aug. 1, 2011, in Wheeling, warning the dozens of attorneys involved to clear their schedules for two months.

The five-judge panel also announced it will hold a mediation day Nov. 15 in Charleston, when two of the judges will try to broker a settlement that Massey, the plaintiffs and dozens of insurance company lawyers can live with.

"We're going to have a dual track here. We're not going to slow down," said Circuit Judge Alan Moats of Taylor County, who chairs the panel. "We're going to go full speed ahead in both directions."

While Moats and Judge Derek Swope of Mercer County will handle the mediation, Ohio County Circuit Judge James Mazzone will start preparing for trial with the help of Circuit Judges John Hutchinson of Raleigh County and Jay Hoke of Lincoln County.

The case originated in Mingo County and was set for trial last fall, but the West Virginia Supreme Court disqualified the judge who had been handling it over a conflict of interest. The case was then referred to another judge, who asked to be removed.

Earlier this year, the court assigned it to the mass litigation panel, judges who specialize in large, complex cases involving hundreds or thousands of plaintiffs.

At Friday's three-hour hearing to get the trial back on track, Mazzone denied more than 100 motions Massey had filed to dismiss cases by plaintiffs who failed to show up last year for a previous attempt at mediation. That keeps the case alive for not only 556 people who say they are already sick or disabled, but also for nearly 200 plaintiffs who want a medical monitoring program to watch for illnesses they believe they could develop.

The current and former residents of Rawl, Lick Creek, Sprigg and Merrimac are suing Massey and Rawl for injecting coal slurry into worked-out mines between 1978 and 1987. Slurry is the wastewater produced when coal is washed to help it burn more efficiently.

Massey has denied any wrongdoing and defends the practice as legal. The lawsuit, however, claims slurry seeped through cracks in the earth into the groundwater, poisoning drinking wells. Residents say decades of exposure to water that often ran orange, red or black caused developmental problems, cancers and other health problems.

The state Department of Environmental Protection has imposed a moratorium on new coal slurry injection sites. Twelve of the 13 currently permitted in West Virginia are active.

Mazzone gave Massey and the plaintiffs until Sept. 1 to hammer out two key evidence issues -- whether Massey chief executive Don Blankenship should be compelled to testify and whether the plaintiffs can have access to a company database of environmental violations. If the parties cannot agree, the judges will decide.

"But we're all very confident that you all will resolve those issues," he said.

Mazzone also ordered the plaintiffs to give Massey, within 30 days, the legal authorization it needs to look at every plaintiff's medical records. He also ordered the information to be shared within 60 days.

Plaintiffs' attorney Kevin Thompson said some of the original plaintiffs have died, and wrongful-death claims will be added to the case in the coming months.

Moats repeatedly stated his intention to keep the case on track this time, saying the public rightly becomes frustrated when it takes years for lawsuits to work their way through the system.

"We are going to do what it takes to resolve these things sooner, rather than later," he said.

Swope demanded, though, that every plaintiff who intends to keep fighting Massey be present on Nov. 15, and that every attorney has the authority he or she needs to settle. All, he said, should be prepared to stay a while.

"This mediation is going to last 'til it's done, folks," Swope said.

"These cases can be resolved," Moats added. "That's what we're going to do."


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