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
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.