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668 S.E.2d 203
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2008 Term
___________
No. 33664
___________
IN RE: FLOOD LITIGATION
COAL RIVER WATERSHED
________________________________________________________
Appeal from the Circuit Court of Raleigh County
Hon. Arthur M. Recht, Judge
Case No. 02-C-797
REVERSED AND REMANDED
________________________________________________________
Submitted: April 16, 2008
Filed: June 26, 2008
W. Stuart Calwell, Esq.
A. L. Emch, Esq.
The Calwell Practice
Jill M. Obenchain, Esq.
Charleston, West Virginia
Amber Lynn Hoback, Esq.
J. David Cecil, Esq.
Jackson Kelly, PLLC
James F. Humphreys & Associates
Charleston, West Virginia
Charleston, West Virginia
Attorneys for Defendants Below
W. Randolph McGraw, Esq.
Prosperity, West Virginia
Attorneys for Plaintiffs Below
___________
No. 33710
___________
IN RE: FLOOD LITIGATION
UPPER GUYANDOTTE RIVER WATERSHED
SUBWATERSHED 2a
______________________________________________________
Appeal from the Circuit Court of Raleigh County
Hon. John A. Hutchison, Judge
Case No. 02-C-797
_____________________________________________________
Scott S. Segal, Esq.
Richard J. Bolen, Esq.
Deborah L. McHenry, Esq.
Cindy D. McCarty, Esq.
Samuel A. Hrko, Esq.
Jonathan E. Porter, Esq.
The Segal Law Firm
Huddleston, Bolen, Beatty, Porter
& Copen
Huntington, West Virginia
W. Stuart Calwell, Jr., Esq.
The Calwell Practice
J. David Cecil, Esq.
David E. Goddard, Esq.
James F. Humphreys & Associates John Greg Goodykoontz, Esq.
Charleston, West Virginia
Steptoe & Johnson
W. Randolph McGraw, Esq.
Clarksburg, West Virginia
Prosperity, West Virginia
Attorneys for Western
Attorneys for Plaintiffs Below
Pocahontas Properties
A. L. Emch, Esq.
Jackson Kelly, PLLC
Charleston, West Virginia
Amicus Curiae for Alex Energy, et al.
___________
No. 33711
___________
IN RE: FLOOD LITIGATION
UPPER GUYANDOTTE RIVER WATERSHED
SUBWATERSHED 2a
_______________________________________
Appeal from the Circuit Court of Raleigh County
Hon. John A. Hutchison, Judge
Case No. 02-C-797
________________________________________
Scott S. Segal, Esq.
Richard J. Bolen, Esq.
Deborah L. McHenry, Esq.
Cindy D. McCarty, Esq.
Samuel A. Hrko, Esq.
Jonathan E. Porter, Esq.
The Segal Law Firm
Huddleston, Bolen, Beatty, Porter
W. Stuart Calwell, Jr., Esq.
& Copen
The Calwell Practice
Huntington, West Virginia
J. David Cecil, Esq.
David E. Goddard, Esq.
James F. Humphreys & Associates John Greg Goodykoontz, Esq.
Charleston, West Virginia Steptoe & Johnson
W. Randolph McGraw, Esq.
Clarksburg, West Virginia
Prosperity, West Virginia Attorneys for Western
Attorneys for Plaintiffs Below
Pocahontas Properties
A. L. Emch, Esq.
Jackson Kelly, PLLC
Charleston, West Virginia
Amicus Curiae for Alex Energy, et al.
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MAYNARD, deeming himself disqualified, did not participate in the
decision of this case.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision of this
case.
JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the decision of
this case.
JUDGE RUSSELL M. CLAWGES, JR., sitting by temporary assignment.
JUDGE DARRELL PRATT, sitting by temporary assignment.
JUDGE O. C. SPAULDING, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “In analyzing the admissibility of expert testimony under Rule 702 of the
West Virginia Rules of Evidence, the trial court's initial inquiry must consider whether the
testimony is based on an assertion or inference derived from the scientific methodology.
Moreover, the testimony must be relevant to a fact at issue. Further assessment should then
be made in regard to the expert testimony's reliability by considering its underlying scientific
methodology and reasoning. This includes an assessment of (a) whether the scientific theory
and its conclusion can be and have been tested; (b) whether the scientific theory has been
subjected to peer review and publication; (c) whether the scientific theory's actual or
potential rate of error is known; and (d) whether the scientific theory is generally accepted
within the scientific community.” Syllabus Point 2, Wilt v. Buracker, 191 W.Va. 39, 443
S.E.2d 196 (1994).
2. “A creative, innovative trial management plan developed by a trial court
which is designed to achieve an orderly, reasonably swift and efficient disposition of mass
liability cases will be approved so long as the plan does not trespass upon the procedural due
process rights of the parties.” Syllabus Point 3, State ex rel. Appalachian Power Co. v.
MacQueen, 198 W.Va. 1, 479 S.E.2d 300 (1996).
3. “Appellate review of a circuit court's order granting a motion to dismiss
a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
Per Curiam:
These two appeals from “flood litigation” cases have been consolidated for
argument and decision. In one case we hold that a jury's determination was valid. In the
other case, we hold that the lower court's dismissal of the case for failure to state a claim was
erroneous.
I.
Both of the instant appeals involve claims for injuries and damages resulting
from flooding that occurred on July 8, 2001, in southern West Virginia _ flooding that the
plaintiffs allege was caused or exacerbated by timbering and/or mining operations that
disturbed the watersheds lying upstream from the plaintiffs. Several thousand such claims
were consolidated and assigned to the Mass Litigation Panel (“the Panel”) established by this
Court pursuant to Trial Court Rule 26.01. This Court previously addressed a number of
certified questions that were posed by the Panel about these claims in
In Re Flood Litigation,
216 W.Va. 534, 607 S.E.2d 863 (2004).
(See footnote 1)
I.
A.
The Slab Fork Case
One of the two appeals involves a jury trial that was conducted by a Mass
Litigation Panel judge in March, April, and May of 2006, involving a number of defendants'
mining and timbering operations in the Slab Fork and Oceana sub-watersheds of the Upper
Guyandotte River (the “Slab Fork case”). In the Slab Fork case, the Panel judge adopted a
Trial Plan in which a jury in a “Phase I” trial was asked to answer the following “common
issues” questions as to each defendant:
1. Whether, as to each Defendant's individual operation or
operations, the Defendant's use of its property materially
increased the peak rate of surface water runoff leaving that
operation as a result of the storm events on or about July 8,
2001, compared to the rate of peak surface water runoff that
would have left the operation but for the Defendant's use of that
property, and if so;
2. Whether the water from the individual Defendant's
operations materially caused or contributed to, the stream or
streams into which they discharged to overflow their banks, and;
3. Regardless of the findings made in 1 and 2 above,
whether the Defendant's use of the property in question was
unreasonable under the circumstances set forth by the Supreme
Court of Appeals in the case of In Re Flood Litigation, 216
W.Va. 534, 607 S.E.2d 863 (2004).
Under the Trial Plan, the jury's answer to the three questions in the Phase I trial
would determine whether a particular defendant could be held liable to a particular plaintiff
in subsequent proceedings. Phase I of the Trial Plan excluded evidence from individual
plaintiffs and other lay evidence about the flooding _ limiting both sides primarily to “expert”
witnesses.
Prior to and during the Phase I trial, claims against a number of defendants
were voluntarily dismissed by the plaintiffs (some due to settlements), leaving the jury at the
end of the Phase I trial to answer the three questions only as they applied to two related
defendant companies _ the appellees Western Pocahontas Properties LLP and Western
Pocahontas Corporation (together, “Western Pocahontas”), whose properties were located
only in the Slab Fork watershed _ and had only been timbered, not mined.
The jury in the Phase I trial answered each of the three questions “Yes,” finding
that Western Pocahontas had materially increased the peak flow of surface water from its
property, that this increase in peak flow materially caused or contributed to causing the
streams in the watershed to overflow their banks, and that Western Pocahontas' use of its
land was not reasonable. Western Pocahontas sought relief from the jury's verdict by way
of a Motion for Judgment as a Matter of Law or For a New Trial.
On March 15, 2007, the Panel judge entered an order striking the testimony of
appellants' expert witnesses (and a report that they relied upon) and granting Western
Pocahontas's Motion for Judgment as a Matter of Law. The Panel judge also awarded a
conditional grant of Western Pocahontas' Motion For a New Trial under Rule 59 of the
West
Virginia Rules of Civil Procedure on six grounds, and ruled that if this Court should reverse
the order as to the granting of Western Pocahontas' Motion for Judgment as a Matter of Law,
then Western Pocahontas nevertheless is entitled to a new trial on all issues.
(See footnote 2)
Before this Court, the plaintiffs in the Slab Fork case appeal the Panel judge's
March 15, 2007 order. The appellants seek to have the order reversed and vacated in its
entirety and seek reinstatement of the jury verdict. Western Pocahontas has cross-appealed
in the Slab Fork case, raising issues that we discuss infra.
B.
The Coal River Case
The second appeal before this Court arises from claims based on flooding in
the Coal River watershed (the “Coal River case”). In that case, a different Panel judge did
not permit the case to go to trial. Unlike the judge in the Slab Fork case, the judge in the
Coal River case refused to allow the plaintiffs to take discovery from the defendants.
Instead, the judge granted the defendants' motion to dismiss, stating that:
[the] Plaintiffs' complaints and amended complaints do not
state what actionable conduct it is that any particular Defendant
is alleged to have engaged in to cause of exacerbate any
particular Plaintiff's alleged injuries. . . . [t]he complaints and
amended complaints did not specify which plaintiffs were suing
which defendants, which defendants' operations were at issue,
or what was alleged to be improper with regard to any specific
defendant operation. . . .[w]here strict liability does not apply,
there must be an allegation of some liability-producing act or
omission related to the harm alleged on the part of each party
against which recovery is sought. General allegations that all
defendants engaged in the normal activities associated with the
conduct of their lawful businesses without any specific
information as to each defendant to indicate that such activities
were conducted improperly or unreasonably are insufficient.
Following is an example of the plaintiffs' allegations against one of the
defendants in the Coal River case _ allegations that the Panel judge concluded did not state
a claim upon which relief could be granted:
a. Defendant failed to monitor, audit, and inspect timbering
activities conducted on its land for compliance with BMPs (Best
Management Practices industry standards);
b. Defendant failed to compare BMP compliance of
timbering activities conducted on its land with state BMP
surveys and failed to set benchmarks for future performance and
improvement;
c. Defendant failed to implement riparian protection
measures, such as marking or flagging streamside management
zones (SMZs) in advance of timber harvests on its land;
d. Defendant failed to develop a program or plan for
protection of streams from timbering; and
e. Defendant's timbering activities disturbed an
unreasonable percentage of drainage area corresponding to one
or more of the twenty-one client clusters set out in plaintiffs'
April 7, 2006 Unified Disclosures.
f. Surface mining operations on defendant's land violated,
and were found to be in violation of, West Virginia mining
regulations intended to reduce surface water runoff and/or
minimize downstream sediment deposition on July 8, 2001;
g. Defendant failed to conduct a surface water runoff
analysis before, during, and/or after conducting its surface
mining activities;
h. Defendant failed to develop a plan to control surface
water runoff from mining operations;
j. Defendant failed to develop a plan to minimize
downstream sediment deposition from mining operations;
k. Defendant engaged in surface mining activities and the
construction of valley fills in an area that was unreasonably
close to a local population center and where it was found to do
harm; and
l. Defendant failed to reclaim its valley fills during
construction by using a more appropriate valley fill construction
method such as the “bottom-up” method, and instead used the
less stable and more erosion-prone “end-dump” method.
m. Upon information and belief, the conduct of defendant
was unreasonable in light of all the factors to be considered
under the rule of reasonable use.
n. The conduct of the defendant was the proximate cause of,
and/or materially contributed to, the flooding that occurred on
July 8, 2001, on the property of those plaintiffs identified as
claiming against the defendant.
o. The conduct of the defendant unreasonably increased the
risk of flooding of the property of plaintiffs.
p. The defendant unreasonably interfered with the use and
enjoyment of plaintiffs' property by increasing the risk of
flooding.
The plaintiffs in the Coal River case ask that the Panel judge's order of
dismissal be reversed and that their case be reinstated.
II.
A.
In the Slab Fork case, three major pieces of plaintiffs' evidence supported the
Slab Fork jury's answers to the Phase I questions. The trial court struck all three pieces of
evidence, leaving little or no direct plaintiffs' evidence that could support the jury's answers.
(See footnote 3)
“[W]hen a circuit court excludes expert testimony as unreliable under the [Rule
702] Daubert/Wilt gatekeeper analysis, we will review the circuit court's method of
conducting the analysis de novo.” San Francisco v. Wendy's Intern., Inc., 221 W.Va. 734,
___, 656 S.E.2d 485, 492 (2007). “Although the ruling of a trial court in granting or denying
a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be
reversed on appeal when it is clear that the trial court has acted under some misapprehension
of the law or the evidence.” Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va.
621, 225 S.E.2d 218 (1976).
The first piece of evidence that the Panel judge struck was the report of the
Flood Analysis Technical Team (“the FATT Report”), issued by a working group of West
Virginia agency experts appointed by the Governor of West Virginia to review the 2001
flooding. The report used internationally-recognized computerized engineering models to
assess the effects of land disturbance from mining and logging on flooding. The FATT
report generally concluded that land disturbance from timbering and mining had increased
flooding in southern West Virginia during the 2001 flood event, although the report did not
look specifically at the watersheds in question in the instant appeals.
The second piece of evidence that the Panel judge struck was the testimony of
Dr. Bruce A. Bell, an environmental engineer with distinguished credentials who designs and
analyzes stormwater management systems. Dr. Bell, using computer models that are used
by engineers in analyzing the effects of land disturbance on stormwater in a wide range of
situations (computer models that were used by the FATT team), and having reviewed
research on timbering effects on water flows, testified that land disturbances from timbering
in the Slab Fork watershed caused a significant increase in the peak flow volume of the
streams on July 8, 2001.
The third piece of plaintiffs' evidence that the Panel judge struck was the
testimony of John Morgan, a mining engineer with expertise in hydrology and cumulative
hydrologic impacts who has designed and reviewed stormwater management plans for state
and federal governments. Relying in part on the same kind of computer model that the FATT
team and Dr. Bell relied upon, Mr. Morgan's testimony emphasized the role of the extensive
network of 245 miles of timbering skid roads located on the steep hillsides of the Slab Fork
watershed in intercepting and altering the normal subsurface flow of infiltrated rainwater that
characterizes the undisturbed forest floor.
(See footnote 4) Like Dr. Bell, Mr. Morgan reviewed research on
the effects of timbering on water flow. Mr. Morgan concluded that the Slab Fork watershed
had a thirty to fifty percent increase in peak flow during the July 2001 event, caused by the
defendants' land-disturbing activities, and that this increase caused or aggravated
downstream flooding. Mr. Morgan also testified that Western Pocahontas' use of its property
in the Slab Fork watershed was not reasonable, because the large proportion of the Slab Fork
watershed disturbed by timbering significantly contributed to downstream flooding, and
because there was no evidence that Western Pocahontas at any time conducted a hydrological
or stormwater/flood runoff evaluation of their property and the effects of their logging and
road building.
This Court stated in San Francisco v. Wendy's Intern., Inc., 221 W.Va. 734,
___, 656 S.E.2d 485, 492 (2007):
“The Rules of Evidence embody a strong and undeniable
preference for admitting any evidence which has the potential
for assisting the trier of fact.” Kannankeril v. Terminix
International, Inc., 128 F.3d 802, 806 (3rd Cir.1997). To assist
the trier of fact, Rule 702 of the Rules of Evidence permits
opinion testimony by an expert, and states:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
“Rule 702 reflects an attempt to liberalize the rules governing
the admissibility of expert testimony.” Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.1999). See also Gentry v. Mangum,
195 W.Va. at 520, 466 S.E.2d at 179. (“In Daubert/Wilt, the Frye test was abandoned by the courts, concluding that Frye's rigid standard was inconsistent with the liberal thrust of the
Federal and West Virginia Rules of Evidence.”); Beech Aircraft
Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d
445 (1988) (highlighting the “'liberal thrust' of the Federal
Rules and their 'general approach of relaxing the traditional
barriers to opinion testimony.'”). The rule “is one of
admissibility rather than exclusion.” Arcoren v. United States,
929 F.2d 1235, 1239 (8th Cir.1991).
In Syllabus Point 2 of Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993),
this Court, following the lead of the United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, 113 S. Ct. 2786, 509 U.S. 579, 125 L.Ed.2d 469(1993), held that:
In analyzing the admissibility of expert testimony under Rule
702 of the West Virginia Rules of Evidence, the trial court's
initial inquiry must consider whether the testimony is based on
an assertion or inference derived from the scientific
methodology. Moreover, the testimony must be relevant to a fact
at issue. Further assessment should then be made in regard to the
expert testimony's reliability by considering its underlying
scientific methodology and reasoning. This includes an
assessment of (a) whether the scientific theory and its
conclusion can be and have been tested; (b) whether the
scientific theory has been subjected to peer review and
publication; (c) whether the scientific theory's actual or
potential rate of error is known; and (d) whether the scientific
theory is generally accepted within the scientific community.
In Gentry v. Mangum, 195 W.Va. 512, 525-27, 466 S.E.2d 171, 184-86 (1995),
this Court stated:
Because of the “liberal thrust” of the rules pertaining to
experts, circuit courts should err on the side of admissibility. See II Franklin D. Cleckley, Handbook on Evidence for West
Virginia Lawyers § 7-2(A) at 24 (“[t]his standard is very
generous and follows the general framework of the federal rules
which favors the admissibility of all relevant evidence”)[.] . . .
“[d]isputes as to the strength of an expert's credentials, mere
differences in the methodology, or lack of textual authority for
the opinion go to weight and not to the admissibility of their
testimony.” Gentry, 195 W.Va. at 525-27, 466 S.E.2d at 184 -
86.
The defendants assert that the Panel judge properly applied the Rule 702 Daubert/Wilt analysis and struck the plaintiffs' evidence. The plaintiffs assert that their
experts' evidence was not “scientific” evidence under Wilt, but was rather technical
engineering evidence, to which this Court has said that the Daubert/Wilt analysis does not
apply:
Unless an engineer's opinion is derived from the methods and
procedures of science, his or her testimony is generally
considered technical in nature, and not scientific. Therefore, a
court considering the admissibility of such evidence should not
apply the gatekeeper analysis set forth by this Court in Wilt v.
Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), and Gentry v.
Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).
Syllabus Point 3, Watson v. Inco Alloys Intern., Inc., 209 W.Va. 234, 545 S.E.2d 294, 296
(2001). The plaintiffs further argue that even if their expert evidence is considered under a Daubert/Wilt analysis, the evidence met that test as well.
The record discloses that the plaintiffs' testifying experts (and the authors of
the FATT report) had extensive training, education, and professional experience and
expertise on how land disturbance affects the flow of surface water, and when one has to
recognize and address those effects so as not to cause off-site impact to one's neighbors. The
circuit court allowed substantial
voir dire of the plaintiffs' experts by the defendants before
qualifying the experts to testify to the jury, which
voir dire firmly established their
professional credentials and substantial experience. This was not a case of a befuddled jury
confounded by bizarre, absurd, or irrational pseudoscientific assertions.
See Wilt, 191 W.Va.
at 45, 443 S.E.2d at 202.
(See footnote 5)
The computer models on which the plaintiffs' experts relied in part are a
standard methodology used in the engineering profession to understand and assess peak
stormwater flows from disturbed land and to design systems to control such flows. The same
basic methodology was used by the FATT task force. The plaintiffs' experts' use of
computer models is an accepted methodology for assessing and evaluating land disturbance
effects on water within the engineering profession. The models' precision and utility in
assessing the sensitivity of the Slab Fork watershed to land disturbance from Western
Pocahontas' timbering was challenged in extensive cross-examination and by expert
testimony, but these challenges went to the weight of the evidence, not its admissibility.
The fact that the plaintiffs' experts did not have substantial prior personal
experience in assessing the effect of land disturbance from large-scale timbering operations
_ as opposed to surface mining, highway construction, and other land-disturbing operations
_ also went to the weight of their evidence; but their lack of such experience did not render
that evidence inadmissible.
We need not decide whether the plaintiffs' expert testimony was properly
subject to a Daubert/Wilt “scientific” evidence analysis, because assuming arguendo that
such an analysis was appropriate, the testimony was “reliable” in the sense that the jury _ if
they credited the testimony _ could base their decision upon it. The testimony clearly met
the liberal admissibility requirements of Rule 702. The jury was entitled to resolve the
conflicts in the evidence and to believe the plaintiffs' experts and disbelieve the defendants'
experts. The jury apparently did just that. Thus the weight of the evidence was not strongly
against the plaintiffs, and an award of a new trial on that basis was erroneous.
We conclude that the Panel judge erred in striking, post-trial, the plaintiffs'
expert evidence, and in granting judgment for the defendants; and in finding that defects in
the plaintiffs' experts' evidence warranted the conditional grant of a new trial.
(See footnote
6)
The defendants have cross-appealed in the Slab Fork case, arguing that the
inclusion in the Phase I trial of a jury determination of reasonableness was erroneous, and
that the evidence permitted on reasonableness was incomplete and inadequate.
This Court held in Syllabus Point 2 of Morris Associates, Inc. v. Priddy, 181
W.Va. 588, 383 S.E.2d 770 (1989):
Generally, under the rule of reasonable use, the landowner, in
dealing with surface water, is entitled to take only such steps as
are reasonable, in light of all the circumstances of relative
advantage to the actor and disadvantage to the adjoining
landowners, as well as social utility. Ordinarily, the
determination of such reasonableness is regarded as involving
factual issues to be determined by the trier of fact. To the extent
that Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266
(1896), differs, it is overruled.
In Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977), a leading case
cited by this Court in Morris v. Priddy, supra, the court said:
Regardless of the category into which the defendant's actions
fall, the reasonable use rule explicitly, as in the case of
intentional acts, or implicitly, as in the case of negligent acts,
requires a finding that the conduct of the defendant was
unreasonable. This is the essential inquiry in any nuisance
action. . . . Reasonableness is a question of fact to be determined
in each case by weighing the gravity of the harm to the plaintiff
against the utility of the conduct of the defendant. Determination
of the gravity of the harm involves consideration of the extent
and character of the harm to the plaintiff, the social value which
the law attaches to the type of use which is invaded, the
suitability of the locality for that use, the burden on plaintiff to
minimize the harm, and other relevant considerations arising
upon the evidence. Determination of the utility of the conduct of
the defendant involves consideration of the purpose of the
defendant's conduct, the social value which the law attaches to
that purpose, the suitability of the locality for the use defendant
makes of the property, and other relevant considerations arising
upon the evidence. . . . We emphasize that, even should
alteration of the water flow by the defendant be “reasonable” in
the sense that the social utility arising from the alteration
outweighs the harm to the plaintiff, defendant may nevertheless
be liable for damages for a private nuisance “if the resulting
interference with another's use and enjoyment of land is greater
than it is reasonable to require the other to bear under the
circumstances without compensation.” The gravity of the harm
may be found to be so significant that it requires compensation
regardless of the utility of the conduct of the defendant. . . .
“(W)hile today's mass home building projects . . . are assuredly
in the social good, no reason suggests itself why, in justice, the
economic costs incident to the expulsion of surface waters in the
transformation of the rural or semi-rural areas of our State into
urban or suburban communities should be borne in every case
by adjoining landowners rather than by those who engage in
such projects for profit. Social progress and the common
wellbeing are in actuality better served by a just and right
balancing of the competing interests according to the general
principles of fairness and common sense which attend the
application of the rule of reason.”293 N.C. at 217-218, 236 S.E.2d at 797 (1977) (internal citations omitted).
(See footnote 7)
Taking into account the wide range of “reasonableness” factors that must be
considered in determining a defendant's ultimate liability
vel non to a plaintiff under the
Morris v. Priddy “reasonable use” doctrine and related causes of action asserted by the
plaintiffs, it is true that the Phase I Slab Fork trial did not permit a complete range of
evidence on the reasonableness issue to be presented to the jury. For example, there was no
significant evidence about specific harm to any plaintiffs or their interests; and likewise the
“social utility” of the defendants' conduct was not fully developed at the Phase I proceeding.
However, the Phase I trial did present to the jury the basic fact of injurious flooding
downstream from the defendants' operations; and there was very substantial evidence
presented by the defendants on the reasonableness of their approach to conducting their
operations and exercising responsibility to their downstream neighbors.
(See footnote 8)
The trial of “mass claim” cases may necessitate novel and creative trial
procedures. “A creative, innovative trial management plan developed by a trial court which
is designed to achieve an orderly, reasonably swift and efficient disposition of mass liability
cases will be approved so long as the plan does not trespass upon the procedural due process
rights of the parties.” Syllabus Point 3, State ex rel. Appalachian Power Co. v. MacQueen,
198 W.Va. 1, 479 S.E.2d 300 (1996).
The first two Slab Fork Phase I trial questions asked the jury to make findings
that would, if the jury's answer for a given defendant was “no,” eliminate from the case those
defendants whose conduct simply had not contributed to flooding. This was an eminently
practical and fair goal. The third Phase I jury question allowed the jury to make a threshold
finding that a defendant's contribution to the flooding was not unreasonable. Notably, a
defendant's liability for damages to any plaintiff was not determined in Phase I. There is no
basis for speculating that appropriate additional evidence on reasonableness that was not
developed in the Phase I proceeding will be precluded in further proceedings. If anything,
the permissible scope of the evidence on reasonableness in the Phase 1 proceeding was
skewed in favor of the defendants. While the “reasonableness” aspect of the Phase I trial
may not have been perfect, it was not fundamentally unfair to the defendants, and the trial
advanced the cases toward resolution.
We conclude that the Phase I trial was conducted in keeping with the approach
approved in State ex rel. Appalachian Power Co. v. MacQueen, and did not trespass upon
the procedural due process rights of the defendants. The defendants' cross-appeal on this
issue is therefore not meritorious.
Based on the foregoing reasoning, we reverse the Panel judge's March 15,
2007 grant of judgment for the defendants and conditional grant of a new trial, and remand
the case to the Mass Litigation Panel with instructions to reinstate the verdict of the Phase
I jury and to proceed to further proceedings based thereon.
B.
The Coal River case involves claims and allegations that are very similar to
those in the Slab Fork case. However, the Coal River case “never made it to trial” _ or even
to the taking of discovery by the plaintiffs (who were nevertheless required to provide
information to the defendants in the form of “more definite statements” pursuant to Rule
12(e) of the
West Virginia Rules of Civil Procedure). Rather, the Panel judge assigned to try
the Coal River case concluded that the allegations in the plaintiffs' complaint (including
amended complaints) did not allege conduct, facts, and circumstances that if proven would
subject the defendants to liability. Therefore the judge granted the defendants' Rule 12(b)(6)
Motion to Dismiss.
(See footnote 9)
“Appellate review of a circuit court's order granting a motion to dismiss a
complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
This Court stated in Ewing v. Board of Educ. of County of Summers, 202 W.Va.
228, 235, 503 S.E.2d 541, 548 (1998):
Generally, a motion to dismiss should be granted only where “'it
is clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations.'” Murphy v.
Smallridge, 196 W.Va. 35, 36, 468 S.E.2d 167, 168 (1996)
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct.
2229, 2232, 81 L.Ed.2d 59, 65 (1984)) (additional citation
omitted). For this reason, motions to dismiss are viewed with
disfavor, and we counsel lower courts to rarely grant such
motions. John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161
W.Va. 603, 605-06, 245 S.E.2d 157, 159 (1978). Once a court
has granted a motion to dismiss, though, we employ a de novo standard of review. See, e.g., Syl. pt. 1, Lipscomb v. Tucker
County Comm'n, 197 W.Va. 84, 475 S.E.2d 84 (1996)
(“Appellate review of a circuit court's order granting a motion
to dismiss an appeal from a decision of a county commission is de novo.”); Syl. pt. 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995)
(“Appellate review of a circuit court's order granting a motion
to dismiss a complaint is de novo.”).
As previously set forth, the complaint in the Coal River case alleges inter alia the following (a larger sample of these allegations is quoted at I. B. supra):
e. Defendant's timbering activities disturbed an
unreasonable percentage of drainage area corresponding to one
or more of the twenty-one client clusters set out in plaintiffs'
April 7, 2006 Unified Disclosures.
f. Surface mining operations on defendant's land violated,
and were found to be in violation of, West Virginia mining
regulations intended to reduce surface water runoff and/or
minimize downstream sediment deposition on July 8, 2001;
g. Defendant failed to conduct a surface water runoff
analysis before, during, and/or after conducting its surface
mining activities;
h. Defendant failed to develop a plan to control surface
water runoff from mining operations;
n. The conduct of the defendant was the proximate cause of,
and/or materially contributed to, the flooding that occurred on
July 8, 2001, on the property of those plaintiffs identified as
claiming against the defendant.
o. The conduct of the defendant unreasonably increased the
risk of flooding of the property of plaintiffs.
p. The defendant unreasonably interfered with the use and
enjoyment of plaintiffs' property by increasing the risk of
flooding.
Our discussion of the issues and proof in the Slab Fork case at II. A.
supra shows that the allegations of the plaintiffs in the Coal River case set forth with adequate
specificity the same sort of facts, conduct, and circumstances that the Slab Fork plaintiffs
were required to prove _ essentially, that the defendants' land disturbance activities had
unreasonably caused or contributed to flooding that injured the plaintiffs.
(See footnote 10) There is no merit
to the defendants' argument and the Panel judge's conclusion that the plaintiffs' complaint
does not give the Coal River defendants fair notice of the asserted factual and legal basis for
the plaintiffs' claims.
Our discussion supra of the Slab Fork case further shows that such issues as
causation, reasonableness, due care, injury, etc. will certainly be the subject of evidentiary
conflict. But the plaintiffs in the Coal River case have sufficiently stated claims upon which
relief may be granted, and they are entitled to try to prove those claims to a trier of fact.
Accordingly, the dismissal of the plaintiffs' complaint in the Coal River case is reversed and
the case is remanded to the Mass Litigation Panel.
III.
The Slab Fork and Coal River cases are remanded to the Mass Litigation Panel
for further proceedings consistent with this opinion.
Reversed and Remanded.
Following are the certified questions answered in
In Re Flood Litigation, and this
Court's answers:
1. Whether adjacent and non-adjacent plaintiffs have a
cognizable cause of action based on allegations of unreasonable
use of land under the balancing test set forth in
Morris
Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770
(1989). Answer: Yes.
2. Whether the plaintiffs have a cognizable cause of action upon
the allegation that the defendants were negligent in the use of
their land and therefore answerable under the classic theory of
negligence. Answer: Yes.
3. Whether the plaintiffs have a cognizable cause of action upon
the allegation that the operation of extracting and removing
natural resources is an abnormally dangerous activity or that
such activity produces ancillary conditions that create an
unreasonably high risk of flash flooding so that the defendants
are strictly liable to the plaintiffs for any damages caused by
these activities. Answer: No.
4. Do those plaintiffs herein who are riparian owners, by virtue
of the fact that they own property adjacent to a stream or
through which a stream flows, have a cognizable cause of action
for interference with riparian rights based on the fact that the
stream's natural flow was increased by a flood or the water of
the stream overflowed and stood upon the riparian owner's land?
Answer: Yes.
5. In the event that a landowner conducts the extraction and
removal of natural resources on its property in conformity with
federal law and with permits issued by appropriate federal
agencies, is any state court action preempted for damages caused
by surface waters accumulating and migrating on residential
property? Answer: No.
6. Is compliance of a landowner in the extraction and removal
of natural resources on his or her property with the appropriate
state and federal regulations evidence in any cause of action
against the landowner for negligence or unreasonable use of the
landowner's land if the injury complained of was the sort the
regulations were intended to prevent? Answer: Yes.
7. Where a rainfall event of an unusual and unforeseeable nature
combines with a defendant's actionable conduct to cause flood
damage, and where it is shown that a discrete portion of the
damage complained of was unforeseeable and solely the result
of such event and in no way fairly attributable to the defendant's
conduct, then is the defendant liable only for the damages that
are fairly attributable to the defendant's conduct? Answer: Yes.
216 W.Va. at 550-551, 607 S.E.2d at 879 - 880.
Footnote: 2 In conditionally granting a new trial, the Panel judge first found that the appellants'
experts were not qualified to testify under Rule 702 of the
West Virginia Rules of Evidence.Second, the judge found that the jury was “very likely overwhelmed by devastatingly
prejudiced evidence” which was rendered irrelevant by the settlements and dismissals of
other defendants. Third, the judge's exclusion of proffered evidence of flooding of the Twin
Falls State Park golf course, when viewed in conjunction with the Panel judge's other
“management errors” had a “cumulative effect” that “expanded exponentially” to
significantly deny Western Pocahontas a fair trial. Fourth, the judge found that references
to deaths resulting from the flood when tied with the “other errors” denied Western
Pocahontas a fair trial and encouraged the jury to resort to passion and sympathy. Fifth, the
judge found that he erroneously admitted what is known as the “FATT report” into evidence,
see discussion
infra. Sixth, the judge found that the verdict was against the clear weight of
the evidence.
Footnote: 3 There was, however, significant evidence adduced on cross-examination from
defense witnesses by the plaintiffs that arguably supported the jury's answers. We do not
address that issue.
Footnote: 4 The evidence in the Slab Fork case showed that during the ten years preceding the
July 2001 flood event, Western Pocahontas harvested timber from about forty percent of the
22,650-acre watershed. The timbering was done by felling all trees over a certain diameter,
removing the trees' limbs, and dragging the logs with power winches and cables to a skid
road and then along the skid road with mechanized skidders to log landings where the logs
were cut into lengths and loaded onto trucks. The companies' evidence was that the skid
roads were laid out and constructed in accordance with timbering Best Management Practices
standards
. The plaintiffs' evidence was that not all of the skid roads were so constructed.
The panel judge cited Western Pocahontas' compliance with BMP standards as grounds for
discrediting the plaintiffs' expert testimony. There was substantial evidence from which the
jury could conclude that BMP standards were not designed or promulgated in order to
significantly affect or control the quantity of stormwater leaving a timbering site, only the
quality. In Syllabus Point 9 of
In re Flood Litigation,
supra, this Court held as follows:
Compliance of a landowner in the extraction and removal of
natural resources on his or her property with the appropriate
state and federal regulations may be evidence in any cause of
action against the landowner for negligence or unreasonable use
of the landowner's land
if the injury complained of was the sort
the regulations were intended to prevent. Such compliance,
however, does not give rise to a presumption that the landowner
acted reasonably or without negligence or liability to others in
his or her extractions and removal activities.
216 W.Va. at 538, 607 S.E.2nd at 867 (emphasis added). There was substantial evidence put
on by experts for the defendants that tended to weigh against the methodology and the
conclusions of the FATT report and the plaintiffs' experts. The defendants were critical of
the plaintiffs' experts' choice of input figures in the computer models the experts used to
demonstrate the effect of land disturbance on peak flows. The defendants' experts did not
offer competing calculations or models to support their position that the defendants' land
disturbance did not increase peak flows. The experts for the defendants generally testified
that timbering according to BMP standards cannot cause significant increases in downstream
peak flows; and that therefore a company following those standards, regardless of the extent
of its operations in any given watershed, need not be concerned about causing any increased
risk of downstream flooding. BMP standards apparently do not address the percentage of
a watershed that may be safely timbered without having an effect on peak flows from a storm
event.
Footnote: 5 The assessment of whether scientifically-based expert testimony is “reliable,” as that
term is used in
Daubert/Wilt, does not mean an assessment of whether the testimony is
persuasive, convincing, or well-founded. Rather, assessing “reliability” is a shorthand term
of art for assessing whether the testimony is to a reasonable degree based on the use of
knowledge and procedures that have been arrived at using the methods of science _ rather
than being based on irrational and intuitive feelings, guesses, or speculation. If the former
is the case, then the jury
may (or may not, in its sole discretion) “rely upon” the testimony.
To be clear: this Court's jurisprudence (and the uniform practice in our trial courts) permits
two reasonably well-qualified experts, each using a methodology that is grounded in
something more than rank speculation or imagination (like reading tea leaves, detecting
auras, and the like), to reach directly opposing conclusions _ and both of the experts'
testimonies will nevertheless fully meet the “reliability” threshold for admissibility set forth
in
Daubert/Wilt.
Footnote: 6 We conclude that the Panel judge's other reasons for the conditional grant of a new
trial do not support that result. A full review of the lengthy trial transcript does not support
the conclusion that the jury could not set aside evidence about other defendants who had been
dismissed during the trial. It was clear from the testimony, exhibits, instructions, and
argument to the jury that there were two defendants in one watershed remaining _ and that
the case as submitted to the jury involved only timber management and harvesting in that
watersheds. The jury could easily understand this and probably welcomed the simplification.
It would make multi-plaintiff and multi-defendant litigation practically infeasible to conclude
that partial settlements during trial authorize a judge to “start all over” because jurors cannot
be trusted to clear their “mental databases.” For better or for worse, courts in many instances
rely on juries to do just that _ and there is no evidence that the jury did not do its job in the
Slab Fork case. The Panel judge also cited the exclusion of photographs purporting to show
flooding of the Twin Falls State Park golf course _ which is outside the Slab Fork watershed.
Our review of the record leads to the firm conclusion that any error with respect to the
photographs was
de minimis. Nor was the brief mention of the fact that people had died in
the July 2001 flooding in question grounds for a new trial; in fact, the Phase I trial was
notably lacking in appeals to emotion or sympathy. The Panel judge also found that the
plaintiffs' experts relied on a forestry expert for the plaintiff who did not testify, and that this
reliance made the plaintiffs' experts' testimony inadmissible. Our review of the record does
not show any reliance that would justify such a conclusion. We have considered the
defendants' other arguments made in their cross-appeal and in support of the trial court's
rulings, and likewise find them to be without merit.
Footnote: 7 See also Wilkinson v. Charles Inv. Co., 48 N.C.App. 213, 215-16, 268 S.E.2d 263,
264-65 (1980):
Each possessor is legally privileged to make a reasonable use of
his land, even though the flow of surface water is altered thereby
and causes some harm to others, but liability is incurred when
his harmful interference with the flow of surface waters is
unreasonable and causes substantial damage. . . .
Reasonableness is a question of fact to be determined in each
case by weighing the gravity of the harm to the plaintiff against
the utility of the conduct of the defendant. . . . Determination of
the gravity of the harm involves consideration of the extent and
character of the harm to the plaintiff, the social value which the
law attaches to the type of use which is invaded, the suitability
of the locality for that use, the burden on plaintiff to minimize
the harm, and other relevant considerations arising upon the
evidence. Determination of the utility of the conduct of the
defendant involves consideration of the purpose of the
defendant's conduct, the social value which the law attaches to
that purpose, the suitability of the locality for the use defendant
makes of the property, and other relevant considerations arising
upon the evidence. . . . We emphasize that, even should
alteration of the water flow by the defendant be “reasonable” in
the sense that the social utility arising from the alteration
outweighs the harm to the plaintiff, defendant may nevertheless
be liable for damages for a private nuisance “if the resulting
interference with another's use and enjoyment of land is greater
than it is reasonable to require the other to bear under the
circumstances without compensation. (citations omitted).
See also Ferguson v. City of Keene, 111 N.H. 222, 224 225, 279 A.2d 605, 607-08 (1971)
(citations omitted):
Defendant in this case was liable if the harm imposed upon the
plaintiff was “greater than it is reasonable to require (her) to
bear under the circumstances, without compensation.” The
circumstances include balancing the utility of the use against the
gravity of the harm suffered by the plaintiff and if it meets the
above test plaintiff is entitled to damages even though she could
not obtain an injunction. (citations omitted).
See also Walsh v. Town of Stonington Water Pollution Control Authority, 250 Conn. 443,
456-57, 736 A.2d 811, 819 (1999):
The charge to the jury in the present case was consistent with
our prior holdings on the element of unreasonable use. When
viewed in the context of the charge as a whole, the jury
instructions concerning unreasonable use conveyed to the jury
that it was to take into consideration and weigh the conflicting
interests involved. The trial court stated at the outset of the
explanation of the unreasonable use element of the claim that
the jury “
must consider the location of the condition and any
other circumstances that you find proven which indicate
whether the defendants [were] making a reasonable use of the
property.” (Emphasis added.) This statement indicates that the
jury must take into account a multiplicity of factors. Reference
to the fact that the use of the property for a plant is a reasonable
use makes clear that the use of the defendants' land to operate
a plant is reasonable
in and of itself. By then noting that the
determination of reasonableness is to be made in the context of
odors produced by the plant, the trial court underscored that the
weighing process for the jury to conduct is of the reasonableness
of use
in light of the production of unreasonable odors that the
jury had determined existed in its answers to the first four
interrogatories. We disagree with the defendants, therefore, that
the effect of the jury instruction was to remove the interests of
the defendants from the jury's consideration. Rather, we
conclude that the trial court's charge provided a reasonably clear
instruction that the jury must consider many factors in
determining the reasonableness of use, including the
reasonableness of use as a plant that creates certain odors in the
course of its operation. [emphasis in original].
See also Rainey v. St. Lawrence Homes, Inc., 174 N.C.App. 611, 614, 621 S.E.2d 217, 220
(2005);
Graber v. City of Peoria, 156 Ariz. 553, 753 P.2d 1209, 1211 (1988).
Board of
Transp. v. Terminal Warehouse Corp., 44 N.C.App. 81, 91, 260 S.E.2d 696, 702 (1979);
Blue Ridge Poultry & Egg Co. v. Clark, 211 Va. 139, 144, 176 S.E.2d 323, 327 (1970):
The doctrine of “balancing of equities” must be viewed in light
of our long standing pronouncement that a private landowner is
to be protected for injuries he may sustain “even though
inflicted by forces which constitute factors in our material
development and growth.” (citations omitted).
See also Taylor v. Culloden Public Service Dist., 214 W.Va. 639, 649, 591 S.E.2d 197, 207
(2003):
We take a dim view of WVAWC's suggestion that a reversal of
the lower court's ruling will effectively halt other companies
from ever agreeing to assume operation of utilities which are
experiencing difficulties. We similarly find offensive the
suggestion that the social value of providing a wastewater
treatment plant so outweighs the gravity of the harm
experienced by the Balls that there can be no recovery under
nuisance law on the facts of this case.
See generally,
Hendricks
v. Stalnaker, 181 W.Va. 31, 34-35, 380 S.E.2d 198, 201-02
(1989) (discussing use of balancing test for determining whether
interference with landowner's private use and enjoyment of
property is unreasonable and, therefore, a nuisance). Operating
a business or providing a service that has societal benefits does
not give a corporate entity license to freely pollute the waters of
this State or to negatively affect the use and enjoyment of
privately owned property.
See also Hughes v. Emerald Mines Corp., 303 Pa.Super. 426, 438, 450 A.2d 1, 7 (1982):
No one is contending that the mining of coal is not a useful
activity, and airshafts are a necessary part of that activity as
safeguards to the health of miners. “Unreasonable”, however, is
a term of art, a legal definition rather than a moral judgment on
the good sense of a party. Utility of an act must be balanced
against the bad effects resulting from that act in determining its
reasonableness. The harm to plaintiffs in the loss of both their
wells was undeniably “severe,” and we are inclined to agree
with the finder of fact that the loss is “greater than they should
be required to bear without compensation,” “
regardless of the
utility of the conduct.” (Citations omitted).
Footnote: 8
See generally Lewin, Jeff L.,“The Silent Revolution in West Virginia's Law of
Nuisance,” 92 W.Va.L.Rev. 235 (Winter 1989-90) for a discussion of how, in the context of
nuisance law and related causes of action and doctrines, determining “reasonableness”
requires looking at the interests and conduct of both the plaintiff and the defendant.
Footnote: 9
The plaintiffs in the Coal River case also argue that it was wrong for their complaints
to be dismissed after nearly six years of litigation, after review by this Court in
In re Flood
Litigation,
supra, and after
the plaintiffs' investment of literally millions of dollars in
investigation. We agree that these factors strongly militate against the dismissal of the
complaint.
Footnote: 10
The defendants cite to the recent United States Supreme Court case of Bell Atlantic
v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 167 L.Ed.3d 929 (2007). That case involved a
complaint that alleged “parallel business conduct” in support of charging an alleged illegal
conspiracy to violate anti-trust laws. The Supreme Court held that merely alleging such
parallel conduct without also alleging an actual agreement between the alleged conspirators
did not state a cause of action, and set forth language suggesting that a complaint in federal
court must now “plausibly suggest” that there are facts that would support the plaintiffs'
claim. Although this Court has not considered whether such a standard should be adopted,
the Coal River plaintiffs' complaint clearly meets that standard. The Panel judge cited to Harold's Auto Parts, Inc. v. Mangialandi, 889 So.2d 493 (Miss. 2004), where the court ruled
that a generic “mass tort” complaint was not specific enough in a case where 264 plaintiffs
were exposed over a seventy-five-year period of time to asbestos products associated with
137 manufacturers in approximately 600 workplaces. In the Coal River case, the plaintiffs
are in one specific watershed, and they allege injuries suffered on one day as a result of the
conduct of specific defendants' operations in that one watershed, and their complaint is far
more specific than the one at issue in Harold's Auto Parts.