This article originally provided by The Charleston Daily Mail

November 16, 2007

Justices OK trial plan for coal prep lawsuit

The Associated Press

The state Supreme Court approved a trial judge's plan for handling a lawsuit that seeks medical monitoring and other damages for coal prep plant workers allegedly exposed to a toxic chemical.

The ruling Thursday rejects a bid by makers and suppliers of the polymer at issue in the case. They sought to block Marshall County Circuit Judge John Madden from allowing punitive damages in the case.

They also unsuccessfully targeted Madden's ruling that Pennsylvania and West Virginia law were sufficiently similar in this area to allow claims from workers from the other state.

Thursday's ruling further denies a request from the petitioners to allow a water treatment worker to join the plaintiffs. The inclusion of Teddy Joe Hoosier would allow him to represent similar workers with medical monitoring claims.

"We believe that there are facts common to both water treatment and coal preparation plant workers, such as exposure to the same chemical and the question of risk of contracting the same diseases, which make intervention proper,'' the majority wrote in its ruling, which also leaves the door open to a future review.

The lawsuit targets a type of chemical known as a polyacrylamide. Among other issues, it rinses coal of waste when added to water. The claimants allege the polymer contains acrylamide monomer, a toxin linked to nerve damage, reproductive injuries and several kinds of cancer.

The ruling is unsigned, as it sets no legal precedent. Justice Brent Benjamin concurred with and dissented from parts of the ruling, and may file a separate opinion.

Wayne County Circuit Judge Darrell Pratt sat in on the case for Chief Justice Robin Davis. Her husband, lawyer Scott Segal, represents Hoosier and other recently added claimants in the case.

The lawsuit names several polyacrylamide suppliers and makers: Chemtall, CIBA Specialty Chemicals Corp., Cytec Industries, G.E. Betz, Hychem, Ondeo Nalco Co., Stockhausen, and Zinkan Enterprises.

Madden issued a trial plan in January that allowed the first phase of trial to decide whether the defendants are liable to the claimants, and whether damages meant to punish conduct are warranted. A second phase, if necessary, would determine whether medical monitoring is required for the claimants, and at what cost.

West Virginia allows such monitoring under a six-step standard. It requires claimants to prove they have been "significantly'' exposed to a "proven hazardous substance'' by the defendant. The substance must increase the risk of "contracting a serious latent disease'' that can be detected by available medical exams and testing.

The Supreme Court previously ruled twice in the case, including in 2005, when it barred the case from proceeding as a class-action involving workers from five additional states.

Thursday's ruling notes those earlier decisions, and observes that the lawsuit was filed more than four years ago.

"We hope the litigants understand and appreciate the difficulty this Court faces in trying to decide so many issues pre-trial, in the limited context of extraordinary remedies, and in the absence of a meaningful, fully developed factual record,'' it said. "Accordingly, we trust the lawyers and parties will now focus vigorously on letting these cases be tried by a trial court.''