Kopano Lachoski blog

Jurors have rejected claims that a Massey Energy coal-loading silo built near a southern West Virginia elementary school exposed hundreds of children to possible health problems, a decision the energy giant said Friday was an important victory.

The class-action lawsuit, which began five years ago, claimed that Virginia-based Massey and a subsidiary, Goals Coal Co., had created a public nuisance by building the silo 235 feet from the school. It also demanded a court-administered medical monitoring program.

Trains pull up to the silo to fill their cars, and the plaintiffs argued that creates dust that puts children at risk for asthma and other lung ailments. But Raleigh County Circuit Court jurors sided with Massey in rejecting those claims after a nine-day trial in Beckley.

General Counsel Shane Harvey blasted the lawyers involved in the case for attacking the coal industry, accusing them of trying to sway the public with hype and publicity.

"But the jury focused on the facts," Harvey said. "We live in these communities and support our local schools and take great care to operate responsibly. Jobs depend on cases like these, and we are very pleased and grateful for the jury's thoughtful service."

The plaintiffs' attorney, Kevin Thompson, said he was disappointed in the verdict but would continue to fight the coal company on other fronts.

"My co-counsel and I have devoted the past several years to exposing Massey's environmental practices, and we think that's a just cause," he said.

Thompson and Massey are set to clash again Aug. 1 in Wheeling, where a three-judge panel will hear a class-action lawsuit that claims the coal company poisoned hundreds of wells and made people sick by pumping coal slurry into worked-out mines. The plaintiffs blame the slurry for turning their water orange, brown and black, but Massey denies any responsibility or wrongdoing.

A jury of six women deliberated the Raleigh County case, brought by Woodrow and Elva Dillon in 2005 on behalf of current and former pupils at Marsh Fork Elementary near Sundial. It accused Massey of negligence and demanded unspecified punitive damages in addition to the health-screening program.

The plaintiffs claimed the silo allowed dangerous levels of coal dust to enter the building. Massey argued there was no evidence to support those claims, and the judge had repeatedly questioned the quality of the testimony offered.

To win medical monitoring in West Virginia, plaintiffs must prove key legal elements — that they have suffered significant exposure to a proven hazard, and that the exposure increases their risk of developing serious latent diseases.

Judge Harry L. Kirkpatrick III said at a pretrial hearing that depositions given in the case failed to produce clear statements that coal dust is dangerous or that children will get sick from breathing it. During the trial, he observed that an expert witness was unable to say how much dust came from the silo.

Massey also argued that no regulators ever found that dust had gotten into the school.

The 70-year-old elementary school served as a media center during the Upper Big Branch mine disaster that killed 29 men last April, and it has been the subject of a fierce public battle for years.

Residents and anti-Massey activists have long complained about the dangers to children, not only from the silo but also from a massive dam that sits above the school and holds billions of gallons of coal slurry.

Plans for a new school in Rock Creek are now in the works.