19 lawsuits filed against company at center of chemical leak
A Kanawha County judge has ordered the company at the heart of the chemical spill that contaminated water in several West Virginia counties to preserve all documents and evidence as the number of lawsuits against it continues to mount.
Kanawha Circuit Court Judge James Stucky issued the order Monday morning.
So far, 19 lawsuits have been filed in Kanawha County Circuit Court related to the Jan. 9 leak of 4-methylcyclohexane methanol into the Elk River at Freedom Industries' facility.
The chemical later made its way into the West Virginia American Water treatment facility that supplies water to nine counties.
U.S. Attorney Booth Goodwin's office also is investigating the incident.
Some lawsuits listed only Freedom Industries as a defendant while many others listed both Freedom Industries and West Virginia American Water Co. One lawsuit also listed Freedom CEO Dennis Farrell.
The most recent order comes from a case filed Jan. 10 on behalf of downtown Charleston businesses Bar 101 and Ichiban.
The businesses say they lost significant income after health departments instructed restaurants and bars to close their doors.
"Time is of the essence in preserving the evidence in this matter," Stucky said in Monday's order.
The judge issued an emergency restraining order against the company and set a hearing in 10 days unless parties resolve how to preserve evidence. Anthony Majestro, an attorney in this case, said the order requires defendants to preserve all evidence.
"We want to make sure that whatever happens, they are documenting how to preserve the evidence so we know how it was the time of the accident," Majestro said.
"Nothing in the preservation can interfere with county, state and federal authorities investigating the accident."
Plaintiffs will be able to review all relevant documents as well and inspect facilities when authorities determine it is safe to do so. These inspections also may not interfere with other ongoing investigations.
Freedom cannot alter or modify relevant equipment or documents unless it's needed to stop the chemical. However, the company must document these changes, the order states.
Attorneys have filed a motion to refer cases related to the chemical spill to a mass litigation panel. Such panels have been used in the past to hear class action lawsuits like those involving the Mountain State University accreditation, and flood and asbestos litigation.
Defendants have 20 days to respond.
Goodwin released a statement Monday about his office's investigation.
"As the immediate water crisis begins to ease and West Virginians regain access to drinkable water, I want to make three things clear," he said.
"One, my office will continue working as quickly as possible to find out exactly what happened here, including the complete timeline of the release and what was done - or not done - before and after it.
"Two, if our investigation reveals that federal criminal laws were violated, we will move rapidly to hold the wrongdoers accountable," Goodwin said.
"And three, companies whose facilities could affect the public water supply should be on notice: if you break federal environmental laws, you will be prosecuted. Our drinking water is not something you can take chances with, and this mess can never be allowed to happen again."
Some of the lawsuits fault West Virginia American Water Co., saying the company didn't respond in a timely or responsible manner.
"Hours before the public warnings were issued, water company officials deceptively told a different story and said their treatment facility - which is near the leak site on the Elk River - could handle the leak from Freedom Industries on Barlow Drive," asserts the Adelphia Inc. lawsuit.
Some of the non-business lawsuits noted a fear and concern for health and safety. So far, only two have medical monitoring claims.
One of the medical monitoring lawsuits, filed by Laura Gandee against Freedom Industries, said the release has already or will possibly make people ill.
It noted a fear of current and future illnesses such as the fear of being significantly more likely to get cancer and other diseases.
Others filed lawsuits because they have been unable to work while some businesses have shut down.
In his lawsuit, Daniel Cleve Stewart, said he was ready to have a kidney transplant the day after the chemical spill but his surgery was canceled because of the leak.
Stewart said the delay caused him to undergo dialysis and suffer continued pain.
In another lawsuit, two residents who live close to the facility asserted they have noticed the liquorish odor on and off for more than a year. These plaintiffs also said they called a government agency, believed to be the state Department of Environmental Protection, to make complaints about the smell.
Lawyers began filing lawsuits against the companies involved at 7:59 a.m. Friday. Eight lawsuits were filed by the close of business that day.
As the number of lawsuits continued to climb, the state Office of Disciplinary Counsel issued a statement Monday emphasizing there are rules regulating how lawyers solicit prospective clients.
"In light of the recent events, the Office of Disciplinary Counsel reminds citizens that there are strict rules that prohibit lawyers or anyone acting on behalf of a lawyer of a law firm from direct in-person or telephone solicitation with prospective clients that the lawyer or law firm has no family or prior professional relationship," the statement said.
The statement said law firms may solicit by mail or recorded communication, but said that communication has to clearly state it is advertising material.