The three are related, at least when it comes to West Virginia mass litigation.  Mass litigation in West Virginia began with asbestos and has spread to areas such as hearing loss litigation, tobacco litigation, and pharmaceutical litigation.  In 2002 flood litigation joined the list.  Unfortunately, although the WV Supreme Court of Appeals set up the WV mass litigation panel by Trial Court Rule and authorized the panel to recommend rules for the conduct of the business by the panel, no such rules have ever been drafted.  Thus, the tendency has developed for each panel to develop its own, largely unwritten, rules of procedure.  Enter the Flood litigation.

On July 8, 2001, it rained in southern West Virginia.  It rained a lot.  The rain event has been described as unprecedented, catastrophic, and biblical in nature.  The amount of flooding over a multi-county area was equally impressive. Within days, plaintiffs’ counsel were running ads for clients and within a year of the flood, more than 3,000 plaintiffs filed suit against virtually every major timber and coal operator (including land owners, sawmill operators, landowner/lessors and subcontractors) located within the flooded counties.  The complaints, much like past asbestos complaints, typically named tens or hundreds of plaintiffs, multiple defendants (more than one hundred were sued) without specifying which plaintiff was actually suing which defendant for what specific activity.  The case was referred to the mass litigation panel in 2002 which decided that the cases would be broken down by major watershed with  plaintiffs required to specifically disclose which plaintiff was suing which defendant for what wrongful conduct-those simple things a defendant likes to know when named in a potential multi-million dollar action.  Those are also the things normally required by the WV Rules of Civil Procedure.  Unfortunately, as with asbestos in the past and other toxic torts currently, most defendants had very little information to base their defense upon just by looking at the pleadings. 

One of the six watersheds at issue was assigned to Judge Arthur Recht.  He looked at the pleadings, said they were inadequate and gave Plaintiffs at least two chances to be more specific in stating their case.  Judge Recht found the resulting efforts inadequate and dismissed about 400 plaintiffs from the litigation.  Plaintiffs appealed and the Supreme Court heard oral argument in the case on April 16, 2008.  The issue framed will have significant impact on future filings in West Virginia.

If Judge Recht’s decision is upheld, mass filings of multiple plaintiffs against multiple defendants will be more expensive and difficult for the mass and toxic tort plaintiffs bar to file.  While individual cases will still be filed, potential defendants will be given a fair opportunity to know what it is they are alleged to have done wrong.  Defendants will also not be faced with the prospect of overwhelming exposure in cases where they have minimal involvement.  On the other hand, if Judge Recht is reversed, do not be surprised to see the continuation of scattergun complaints against every possible defendant every chance plaintiffs’ counsel has the opportunity to do so.  We hope to hear from the Supreme Court by the end of June.