Judge approves water crisis class-action suit

A federal judge has approved efforts to pursue class-action liability claims against West Virginia American Water Co. and Eastman Chemical Co. over the January 2014 Elk River chemical spill that contaminated the region’s water supply.

U.S. District Judge John T. Copenhaver Jr. issued a 60-page order on Thursday certifying liability classes in the lawsuit.

Copenhaver defined the liability classes as:

n All people living in dwellings supplied tap water by West Virginia American’s Kanawha Valley Treatment Plan on Jan. 9, 2014;

n All people or entities who owned businesses operating in real property supplied tap water by the plan on that date; and

n All people who were regularly employed as hourly wage-earners for businesses that operated in real property supplied tap water by the plant on that date.

The class-action suit alleges the water company did not adequately prepare or respond to the leak, which occurred just 1.5 miles upstream from its regional water intake. It alleges Eastman — which manufactured the chemical MCHM and sold it to Freedom Industries — did not properly test the chemical or warn buyers or the public about potential health impacts.

Copenhaver had previously refused requests from the water company and Eastman to throw out the case. In Thursday’s ruling, the judge denied a request from the plaintiffs to also certify a damages class, meaning that damages would have to be determined on a case-by-case basis.

Copenhaver said Friday that a trial would be held in mid-July 2016.

Stuart Calwell, an attorney for the plaintiffs, asked the judge during Friday’s status conference for details about how future trials over damages would be structured, adding that might help attorneys prepare over the next 10 months. Calwell proposed allowing the same jury which hears the liability case to decide some of the damages claims.

But Copenhaver said he doubts he would allow the same jury to be used. He said the jury that decides liability could be used for bellwether purposes in the damages cases. Bellwether cases are chosen by a judge to help predict the potential outcome of other lawsuits making similar claims.

Attorneys in the case are set to meet before Copenhaver for another status hearing on Nov. 6.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter. Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.

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