LAWRENCE PIERCE file photo /Sunday Gazette-Mail
The Lundale bridge over Buffalo Creek was pushed 50 feet by the
raging water, but remained intact. The debris piled against the bridge
is the remains of dozens of houses, some possibly carried from as far away
as Saunders.
By Maryclaire Dale
SUNDAY GAZETTE-MAIL
Dennis and Margie Prince ran toward the hillside when they saw a roof careening
down Buffalo Creek the morning of Feb. 26, 1972.
Two of their children were ahead of them and one behind when the swirling
black waters reached the couple. They tried to climb atop a floating car,
but a neighbor's house rushed toward them and sank the vehicle.
Her husband struggled to climb to the roof of the house, then reached down
for his wife.
"But before he was able to grab onto her hand, she was torn away by
the raging water. Within seconds she disappeared, never to be seen alive,"
a federal lawsuit recounted.
"After nine days of searching, Margie's body was found at Amherstdale,
more than five miles downstream from their trailer site at Lundale."
She was 42.
New diagnosis, new law
When Dennis Prince finally opened up and told his story,
Gerald Stern knew he had found the lead plaintiff for his class action
suit against Pittston Coal Co.
Stern, a Washington, D.C. lawyer, collected stories and information for
months from the survivors of Buffalo Creek, hand-writing their tales as
they filed into his temporary "office" - a tiny storage space
at Charlie Cowan's gas station in Amherstdale.
"They were crushed. Their whole demeanor demonstrated how overwhelming
this disaster had been. It was hard for them to sit up straight or to talk
for long periods of time without drifting off in their thoughts or without
averting their eyes from my glance. Tears came quickly and often.
"I was beginning to see the serious personal consequences of this
disaster," Stern wrote in his 1976 book, "The Buffalo Creek Disaster:
The Story of the Survivors' Unprecedented Lawsuit."
Stern did not realize it early on, but the emotional devastation he saw
would lay the groundwork for a new psychiatric diagnosis, "survivor's
syndrome," and new law.
In the past, plaintiffs had won monetary awards for the loss of a loved
one, for lost property, for an injury, and even for pain and suffering.
But never for the emotional trauma of witnessing, and surviving, a disaster.
Some of Stern's 625 plaintiffs in Dennis Prince et al. vs. The Pittston
Co. were not physically hurt at all a few were not even in Buffalo Creek
that day. Nonetheless, they returned to find their homes and community,
their family and friends, had vanished.
Stern sent medical and psychological experts to examine the victims, including
Yale psychology professor Robert Lifton. Lifton had studied survivors of
Hiroshima and Vietnam, and found common psychological effects that today
are known as post-traumatic stress syndrome.
He found the same emotional scars in the people of Buffalo Creek.
"According to Lifton, survivors of such experiences feel guilty because
of their relief that they survived and that there is something they could
have done to save those who died. Other symptoms include a preoccupation
with death and "psychic numbing" that leaves survivors apathetic,
withdrawn and depressed," according to a 1978 news article.
Some also suffered from chronic sleeplessness, impotence, alcoholism and
a paralyzing fear of rain.
A few years later, the medical community added survivor's syndrome to its
list of recognized diagnoses.
Long before wrestling with that claim, though, Stern's first hurdle was
to pierce Pittston's "corporate veil." Pittston was the parent
corporation of Buffalo Creek Mining Co., which actually operated the dam.
Stern knew to get any significant award, he had to sue Pittston, which,
as the country's fourth-largest coal company, had deep pockets.
Pittston fought to be dismissed from the suit. But U.S. District Judge
K.K. Hall sided with Stern. Hall also blocked Pittston's efforts to keep
all pretrial filings under seal.
"Anything we do here is going to be in the open," Hall said.
In response, Pittston hired a public relations firm, which asked the press
not to report the pretrial actions - such as depositions in which Pittston
officials said they talked about the rising water level, but did nothing,
in the hours before the disaster.
In June 1974, Pittston settled Stern's suit for $13.5 million.
The company started negotiations with a $3 million offer Stern said he
held out until he got half the corporation's reported $27 million in profits
for 1972, the year of the disaster.
About 4,000 people were left homeless by the break at Dam 3.
Stern's 625 plaintiffs split $8.5 million after subtracting legal fees
and a 25 percent contingency fee charged by Stern's firm, Arnold and Porter.
The amount each received depended on his or her experience. At the high
end, Dennis Prince received $125,543. The least affected group of plaintiffs
received average payments of about $8,400.
By comparison, people who accepted money from Pittston's claims office
early on generally received modest amounts - one woman received $7,500
for five rooms worth of furniture, another man $3,000 for his losses. They
signed away their right to sue Pittston for further claims.
Stern's plaintiffs, though, risked a protracted lawsuit, and might have
gotten nothing in the end.
The juvenile survivors
The settlement meant that no judge or jury ever ruled
on the merit of survivor's syndrome, although U.S. District Judge John
Copenhaver Jr. later said the claim could be considered by a jury.
Copenhaver handled a second class action suit Cross Lanes lawyer Phillip
Gaujot filed in 1975 on behalf of 348 juvenile survivors who were not party
to Stern's suit.
Meanwhile, the state filed a $100 million suit against Pittston, $50 million
for the money spent on disaster relief and $50 million for punitive damages.
In a startling move, Gov. Arch Moore settled the suit for a mere $1 million
three days before leaving office in 1977.
Gaujot's suit asked for $225 million. Pittston responded with strong fighting
words.
"During the last three years, the company has done its best to seek
out and pay all valid claims for personal and property damage. From thousands
of claims filed by thousands of people, over $26 million has been paid,"
a Pittston spokesman said when Gaujot filed his suit.
"We will fight every one of the new claims in court," he vowed.
Two years later, Pittston settled with Gaujot for $4.8 million. His clients
received an average $2,800.
An interesting footnote to that case is a ruling Copenhaver made involving
the rights of fetuses. Copenhaver agreed that five children who were in
utero at the time deserved monetary awards, because of medical evidence
that fright can affect an unborn child.
Four of the five were less than six months developed, then considered the
age at which a fetus could survive outside the womb. Copenhaver's law clerk
was quick to distance the ruling from the brewing abortion debate.
"There was no legal ground broken in this ruling. Similar rulings
have been handed down in other parts of the country. This was, however,
the first such West Virginia case involving fetuses less than six months
old," he told a reporter.
"It changed me"
"A simple document filed today in U.S. District Court
brought an end to nearly seven years of legal battles stemming from the
Buffalo Creek disaster," local reporter Robin Toner, now with The
New York Times, wrote on Dec. 19, 1978.
Three children who had dropped out of Gaujot's suit made individual settlements
of about $5,000 with the company.
Documents from the two class action suits, the state's suit and assorted
individual suits came to take up 20 shelves in the clerk's office at the
Federal Building in Charleston.
"I lost some real close friends in the flood. They were real close,
like brothers," Timothy Franklin, one of the last three people to
settle, said at the time. He was 13 and asleep in bed when the flood came.
"They can never pay me back. Five thousand dollars in this day and
time for the kind of hardships I've been through ... It just did something
to me, it changed me," he said.