Case 2:14-cv-01374 Document 934 Filed 07/29/16 Page 1 of 7 PageID #: 33281 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CRYSTAL GOOD, ET AL. CaseNo.2:14-CV-01374 Hon. John T. Copenhaver, Jr. Plaintiffs, v. Consolidated with: AMERICAN WATER WORKS COMPANY, INC., ET AL. Defendants. CaseNo.2:14-CV-11009 Case No. 2:14-CV-11011 Case No. 2:14-CV-13164 Case No. 2:14-CV-13454 MOTION TO TAKE JUDICIAL NOTICE Plaintiffs respectfully move this Court for an order taking judicial notice of the following facts relating to what has been referred to throughout the case as the “Do Not Use order”— technically, a “Do Not Use Water Notice”—issued on January 9, 2014: 1. On January 9, 2014 at 5:51 pm, West Virginia American Water Company (“West Virginia American”) issued a Do Not Use Water Notice for the entire Kanawha Valley water system. Exhibit 1- CGC0012673–74. 2. Pursuant to the Do Not Use Water Notice issued on January 9, 2014, West Virginia American’s Kanawha Valley customers were instructed not to use their tap water for any household or business purpose other than toilet flushing. 3. The Do Not Use Water Notice was issued as a result of the contamination of the Kanawha Valley water system following the chemical spill into the Elk River that occurred earlier that day involving the chemical 4-methylcyclohexane methanol, a chemical known as “MCHM.” Exhibit 2- CGC0012673–74. Case 2:14-cv-01374 Document 934 Filed 07/29/16 Page 2 of 7 PageID #: 33282 4. The Do Not Use Water Notice remained in effect for all Kanawha Valley customers on January 10, 2014. 5. The Do Not Use Water Notice remained in effect for all Kanawha Valley customers on January 11, 2014. 6. The Do Not Use Water Notice remained in effect for all Kanawha Valley customers on January 12, 2014. 7. The Do Not Use Water Notice began to be lifted on a zone-by-zone basis when water sampling and analytical results indicated that the Kanawha Valley system water contained less than one part per million (1.0 ppm) MCHM, the standard established first by the United States Centers for Disease Control (“CDC”) and adopted by the West Virginia Bureau for Public Health (“Health Department”) as the health standard for MCHM. Exhibit 3- CGC00012684; Exhibit 4- CGC00002672. 8. The Do Not Use Water Notice was lifted for customers in the downtown and East End areas of Charleston mid-day on January 13, 2014, followed by the Kanawha City area of Charleston later in the day on January 13. The Do Not Use Water Notice remained in effect for all other Kanawha Valley customers on January 13, 2014. Exhibit 5- CGC00002527–2528. 9. The Do Not Use Water Notice was lifted for additional areas within the Kanawha Valley system on January 14, January 15, January 16, and January 17, 2014. The Do Not Use Water Notice remained in effect for some Kanawha Valley customers until January 17, 2014. Exhibit 6- CGC0012743_0002. 10. On January 17, 2014, a Do Not Drink/Limited Contact Notice was issued for the town of Buffalo, Frazier’s Bottom, and Pliny because water samples indicated that the Case 2:14-cv-01374 Document 934 Filed 07/29/16 Page 3 of 7 PageID #: 33283 water in those areas might be contaminated above the established health standard of one part per million MCHM. Exhibit 7- CGC00000211. 11. The Do Not Drink/Limited Contact Notice lasted until January 18, 2014 for customers in the Buffalo, Frazier’s Bottom, and Pliny areas. Exhibit 8CGC00000211. 12. West Virginia American’s customers were instructed to flush their plumbing, appliances, faucets, and hot water heaters following the lifting of the Do Not Use Water Notice for their zone and prior to resuming regular use of the tap water. Exhibit 9- CGC00012686. 13. The contamination of the Kanawha Valley water system on January 9, 2014, and the resulting Do Not Use Water Notice annoyed and inconvenienced West Virginia American’s Kanawha Valley customers. Argument Plaintiffs bring the instant motion under Rule 201 of the Federal Rules of Evidence, which provides in relevant part: (b) Kinds of Facts that May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The first seven of the 13 facts that are the subject of the instant motion for judicial notice are generally known within this Court’s territorial jurisdiction, and therefore can be noticed under subsection (b)(1). Twelve of the 13 facts above (all except for No. 13) can be accurately and readily determined from the attached Exhibits, which are self-authenticating sources Case 2:14-cv-01374 Document 934 Filed 07/29/16 Page 4 of 7 PageID #: 33284 produced in discovery by West Virginia American whose accuracy cannot reasonably be questioned as to these subjects: the timing and geographical reach of the Do Not Use Water Notice, the standards applied by West Virginia American in lifting the Notice, and the instructions for flushing provided by West Virginia American for customers to follow upon the lifting the Notice. Because one of the two factors supporting judicial notice clearly applies for each of the 13 facts at issue, this Court must take judicial notice of these facts. F.R.E 201(c)(2). The only one of the 13 facts set forth above that cannot be readily determined from documentary sources is the thirteenth, in which Plaintiffs ask this Court to take judicial notice of the fact that West Virginia American’s Kanawha Valley customers were annoyed and inconvenienced by the contamination of the water system and the resulting loss of the ability to use their tap water for any purpose other than toilet flushing or firefighting. However, that the loss of the use of tap water is an inconvenience is well-known generally throughout United States (and likely other developed countries where usable tap water may be taken for granted). The United Nations has “recognized the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” 1 Moreover, it is particularly well known in the area around Charleston, West Virginia, as a result of the experience in January 2014. The fact of disruption, hardship or public inconvenience has been judicially noticed when it is a matter of general conditions that are common public knowledge. See e.g. Davis v. Lindsay, 321 F. Supp. 1134, 1138 (S.D.N.Y. 1970) (judicial notice may be taken of seriousness of recent disruptions in city’s prisons); Huggins v. Wake County Bd. Of Ed., 272 N.C. 33, 157 S.E.2d 703 (1967) (judicial notice may be taken, as a matter of common knowledge, that a wholesale reshuffling of students and teachers in the midst of an academic school year would 1 United Nations General Assembly, Resolution 64/292, July 28, 2010. Case 2:14-cv-01374 Document 934 Filed 07/29/16 Page 5 of 7 PageID #: 33285 entail widespread confusion and disruption of work); McCarthy v. Monte, 1991 WL 138614 (D. V.I. Jun. 17, 1991) (judicial notice taken of the severity of disruption caused by Hurricane Hugo to the U.S. Virgin Islands on September 17 and 18, 1989); Southwestern Bell Tel. Co. v. State, 181 Okla. 246, 71 P.2d 747 (1937) (depression-era court took judicial notice of business conditions and general lowering of business returns); Community Redevelopment Agency v. Abrams, 543 P.2d 905, 126 Cal. Rptr. 473 (1975) (court may take judicial notice of universally known “conditions of modern American life”); and United States v. Restor, 529 F. Supp. 579, 583 (W.D. Pa. 1982) (court took judicial notice that air traffic controller strike resulted in hardship and inconvenience to the public). Conclusion For the foregoing reasons, Plaintiffs’ Motion to Take Judicial Notice should be granted. Dated: July 29, 2016. Plaintiffs, By Counsel. /s/Kevin W. Thompson Kevin W. Thompson, Esq. (WVSB #5062) David R. Barney, Jr., Esq. (WVSB #7958) Thompson Barney 2030 Kanawha Boulevard, East Charleston, West Virginia 25311 Phone: 304-343-4401 Facsimile: 304-343-4405 kwthompsonwv@gmail.com drbarneywv@gmail.com Van Bunch, Esq. (WVSB #10608) Bonnett Fairbourn Friedman & Balint PC 2325 E. Camelback Road, Suite 300 Phoenix, Arizona 85016 Phone: 602-274-1100 Facsimile: 602-274-1199 Case 2:14-cv-01374 Document 934 Filed 07/29/16 Page 6 of 7 PageID #: 33286 vbunch@bffb.com Stuart Calwell, Esq. (WVSB #0595) Alex McLaughlin, Esq. (WVSB #9696) D. Christopher Hedges, Esq. (WVSB #7894) The Calwell Practice, LC Law and Arts Center West 500 Randolph Street Charleston, West Virginia 25302 Phone: 304-343-4323 Facsimile: 304-344-3684 scalwell@calwelllaw.com amclaughlin@calwelllaw.com chedges@calwelllaw.com Class Counsel Case 2:14-cv-01374 Document 934 Filed 07/29/16 Page 7 of 7 PageID #: 33287 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CRYSTAL GOOD, ET AL. CaseNo.2:14-CV-01374 Hon. John T. Copenhaver, Jr. Plaintiffs, v. Consolidated with: AMERICAN WATER WORKS COMPANY, INC., ET AL. Defendants. CaseNo.2:14-CV-11009 Case No. 2:14-CV-11011 Case No. 2:14-CV-13164 Case No. 2:14-CV-13454 Certificate of Service The undersigned counsel for Plaintiffs hereby certifies that on July 29, 2016, the foregoing MOTION FOR LEAVE TO TAKE JUDICIAL NOTICE was delivered via hand delivery this day. Undersigned counsel has filed this Certificate of Service through the CM/ECF system which will send notification of the filing to all counsel of record. /s/Kevin W. Thompson Kevin W. Thompson, Esq. (WVSB #5062)