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Monday, November 14, 2016


Original Story: wvgazettemail.com

Lawyers for the company that manufactured the chemical that contaminated the drinking water supply for thousands in the Kanawha Valley in January 2014 announced Wednesday that the company had reached a preliminary settlement in a class-action lawsuit over the Elk River spill.

Claims in the lawsuit against West Virginia American Water were not settled as of Wednesday, but U.S. District Judge John Copenhaver Jr. pushed the trial back another day to give the sides more time to try to reach an agreement.

Details of the proposed settlement with Eastman Chemical Co., which manufactured the Crude MCHM that spilled into the Elk River from tanks belonging to Freedom Industries, will be filed under seal until after trial. Chemical storage tanks are used for chemicals in virtually every industry, especially those that involve caustic or corrosive chemicals.

Trial had been set to begin with jury selection Tuesday but, on Wednesday, Copenhaver told lawyers to spend Thursday trying to reach an agreement.

More than 224,000 residents and more than 7,300 business owners are part of the class of plaintiffs suing the water company and Eastman.

Before the proposed agreement in the class-action lawsuit is finalized, members of the class must be notified and given the chance to respond to its terms. It’s up to Copenhaver whether to approve of the proposed agreement.

Lawsuits in state and federal courts allege that Eastman didn’t properly warn Freedom about safety concerns related to the type of storage tanks Freedom used. Eastman also is accused of knowing that the Freedom site was unsafe and doing nothing about it. A Charleston class action lawyer is following this story closely.

The settlement announced Wednesday, if approved, would satisfy all state and federal lawsuits against Eastman. Copenhaver has insisted to all sides that a settlement would have to resolve not only the case pending for trial — known as Crystal Good v. American Water — but also a number of state court cases pending before the West Virginia Supreme Court’s mass litigation panel and several other pending federal court cases over the spill.

“We’re very pleased with the settlement,” said Anthony Majestro, the lead plaintiffs attorney for the cases in front of the state’s mass litigation panel. “We think it’s in the best interest of the people who were affected by this spill.”

Earlier this month, Copenhaver ruled against Eastman and denied a motion in which the company attempted to use a legal doctrine known as the “economic loss rule” to prohibit the “wage earners” in the class-action case from recovering damages from the chemical company. Meanwhile, a similar motion by the water company was granted.

After the settlement was announced, an attorney for the water company told the judge he might need to request that the trial be continued.

“I’m happy to receive your motion, but don’t be optimistic,” Copenhaver said. “This case is ready to proceed.”