Case 2:14-cv-01374 Document 1080 Filed 10/24/16 Page 1 of 58 PageID #: 37261

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CRYSTAL GOOD, et al.,
Plaintiffs,
CIVIL ACTION NO.: 2:14-CV-01374
(Consolidated with Case No. 2:14-11011;
Case No. 2:14-13164; Case No. 2:14-13454)
HON. JOHN T. COPENHAVER, JR.
AMERICAN WATER WORKS
COMPANY, et al.,
Defendants.
AMENDED PROPOSED INTEGRATED PRETRIAL ORDER
Pursuant to Rule 16.7(b) of the Local Rules of Civil Procedure and the Court's October 3,
2016 Order [ECF No. 969], pursuant to Rule 16.7(b) of the Local Rules of Civil Procedure and
the Court's October 3, 2016 Order [ECF No. 969], the parties hereby submit the following
amended integrated pretrial order to the Court.

(1)

The pre-trial disclosures required by Fed. R. Civ. P. 26(a)(3) and any
objections thereto;

A.

The name and, if not previously provided, the address and telephone
number of each witness—separately identifying those the party
expects to present and those it may call if the need arises:

PLAINTIFFS
See attached Plaintiffs’ witness list attached hereto and identified as “Exhibit 1.”

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DEFENDANT EASTMAN CHEMICAL COMPANY ("EASTMAN")
See the list of witnesses whom Defendant intends to present at trial, attached hereto as
“Exhibit 2.”
AMERICAN WATER DEFENDANTS
WVAWC and AWWSC attach the following pre-trial disclosures required by Fed R. Civ.
P. Rule 26(a)(3): Attached as American Water Defendants' "Exhibit 3" is the combined list of
witnesses, identifying those expected to be called and those it may call if the need arises;

B.

The designation of those witnesses whose testimony the party expects
to present by deposition and, if not taken stenographically, a
transcript of the pertinent parts of the deposition:

PLAINTIFFS
See attached Plaintiffs’ designation list attached hereto and identified as “Exhibit 4.”

DEFENDANT EASTMAN
See attached list of counter-deposition designations and objections to Plaintiffs'
Deposition Designations Defendant may present at trial under the rule of completeness, attached
hereto as “Exhibit 5.” Eastman reserves the right to present the testimony of any witness
identified by Plaintiffs in their witness list by means of deposition transcript. Further, Eastman
respectfully reserves the right to present the testimony of any additional witnesses via deposition
transcript, where such testimony is necessary and/or appropriate to rebut any evidence presented
by Plaintiffs.

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AMERICAN WATER DEFENDANTS
WVAWC and AWWSC attach the following pre-trial disclosures required by Fed R. Civ.
P. Rule 26(a)(3): attached as "Exhibit 6" are the combined deposition designations.
C.

An identification of each document or other exhibit, including
summaries of other evidence—separately identifying those items the
party expects to offer and those it may offer if the need arises:

PLAINTIFFS
See attached Plaintiffs’ exhibit list attached hereto and identified as “Exhibit 7.”
DEFENDANT EASTMAN
See the list of revised exhibits Defendant intends to offer at trial, attached hereto as
“Exhibit 8” and Defendant's objections to Plaintiffs' exhibits, attached hereto as "Exhibit 13."
Defendant reserves the right to use at trial any exhibits listed by Plaintiffs in their Pre-Trial
Exhibit List. Further, Defendant reserves the right to present any additional exhibits, where such
exhibits are necessary and/or appropriate to rebut any evidence presented by Plaintiffs and to use
any appropriate demonstrative exhibits.

D.
1.

Eastman's Objections to Plaintiffs' Rule 26(a)(3) Disclosures

Eastman objects to Plaintiffs' use of any witnesses that were not previously
disclosed in this litigation as potential witnesses by Plaintiffs and who have not
already provided deposition testimony in this case, as required by this Court's
Scheduling Order and Rule 37 of the Federal Rules of Civil Procure.

2.

Eastman objects to the use of any exhibits that were not previously disclosed prior
to the close of discovery set forth in this Court’s Scheduling Order and/or not
disclosed in Plaintiffs’ Rule 26(a)(3) disclosures. Eastman also objects to each

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exhibit on Plaintiffs’ exhibit list to the extent that any of the same is an
incomplete document (Fed. R. Evid. 106); contains inadmissible hearsay (Fed .R.
Evid. 801 and 802); contains information that is not relevant (Fed. R. Evid. 401
and 402); contains information that is unfairly prejudicial (Fed. R. Evid. 403);
was not produced in discovery (Fed. R. Civ. P. 37); is not properly authenticated
(Fed. R. Evid. 901) or violates the best evidence rule. (Fed. R. Evid. 1001).
3.

Eastman objects to the use of any witnesses and exhibits that are subject to one or
more of Eastman's Motions in Limine currently pending before the Court.

4.

Eastman objects to the use of deposition testimony, except as permitted by the
Federal Rules of Civil Procedure.

5.

Eastman further objects to the introduction of exhibits that are not properly
authenticated or otherwise properly introduced in accordance with the Federal
Rules of Civil Procedure.

6.

Eastman respectfully objects to the introduction of any testimony by Plaintiffs on
any matter that is not relevant to this action or on any matter for which the
probative value is outweighed by prejudicial impact pursuant to Rules 401, 402,
and 403 of the Federal Rules of Evidence.

7.

Eastman objects to improper opinion testimony from Plaintiffs or anyone who
they may seek to call who is not qualified to offer opinion testimony pursuant to
Rules 701 and 702 of the Federal Rules of Evidence.

8.

Eastman reserves the right to object to any exhibit and/or testimony that is not
properly authenticated and admissible under the Federal Rules of Evidence.

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AMERICAN WATER DEFENDANTS
WVAWC and AWWSC attach the following pre-trial disclosures required by Fed R. Civ.
P. Rule 26(a)(3): attached as "Exhibit 9" is the combined revised list of exhibits and WVAWC
and AWWSC objections to Plaintiffs' exhibits, attached hereto as "Exhibit 14." WVAWC and
AWWSC will provide objections, as appropriate, to the Rule 26(a)(3) submissions of the other
parties at a time to be agreed upon by the parties and the Court.
(2)

Contested issues of law requiring a ruling before trial;

PLAINTIFFS
Plaintiffs request Court approval of the settlements with Gary Southern and Dennis P.
Farrell. Plaintiffs filed motions for adverse inference instructions for spoliation of evidence that
are pending. The parties have also requested rulings on a number of motions in limine. Plaintiffs
also are awaiting a ruling on their motion to exclude George Kunkel, P.E.
DEFENDANT EASTMAN
A. Eastman's Motions in Limine
1.

[ECF No. 974] Eastman Chemical Company's Omnibus Motion in Limine

2.

[ECF No. 976] Eastman Chemical Company's Motion in Limine to Exclude
Evidence Regarding Responsible Care

3.

[ECF No. 977] Eastman Chemical Company's Motion in Limine to Exclude
Evidence of Revisions to Eastman's Crude MCHM SDS and Changes to
Customer Policies Regarding Crude MCHM

4.

[ECF No. 978] Eastman Chemical Company's Motion in Limine to Exclude
Certain Evidence Related to Glenda Flick

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5.

[ECF No. 979] Joint Motion by American Water Works Service Company, Inc.,
Eastman Chemical Company, and West Virginia-American Water Company in
Limine to Exclude Testimony by Class Representatives

6.

[ECF No. 980] Eastman Chemical Company's Motion in Limine to Exclude
Evidence and Testimony that Eastman's Crude MCHM SDS was Required to
Include or Failed to Include a Warning Regarding Corrosion

7.

[ECF No. 982] Eastman Chemical Company's Motion in Limine and Combined
Memorandum of Law to Exclude any Reference to Evidence Regarding Damages

8.

[ECF No. 986] Eastman Chemical Company's Motion in Limine Regarding
Eastman's Alleged Legal Duties

9.

[ECF No. 988] Eastman Chemical Company's Motion in Limine to Exclude
References to the Allegedly Depressed Market for Crude MCHM or Unsafe Coal
Industry

10.

[ECF No. 989] Eastman Chemical Company's Motion in Limine Regarding
Testimony of Gary Shrum

11.

[ECF No. 990] Eastman Chemical Company's Motion in Limine to Exclude
References to Statutes and Regulations

12.

[ECF No. 991] American Water Works Service Company, Inc., Eastman
Chemical Company, and West Virginia-American Water Company's Motion in
Limine to Exclude any Part of the Conclusions, Findings or Recommendations of
the Chemical Safety Board

13.

[ECF No. 992] Eastman Chemical Company's Motion in Limine to Exclude SDS
Data Regarding Health Effects

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14.

[ECF No. 995] Eastman Chemical Company's Motion in Limine to Exclude the
Testimony of Andrew Whelton, Ph.D.

15.

[ECF No. 998] Eastman Chemical Company's Motion in Limine to Exclude
References to Health Effects and Inflammatory Language Regarding Crude
MCHM

B. Eastman's Other Pending Motions
1.

[ECF No. 721] Motion to Exclude Plaintiffs' Expert David Scott Simonton

2.

[ECF No. 726] Motion for Summary Judgment on the Issue of Responsible Care

3.

[ECF No. 734] Motion to Exclude the Opinions and Testimony of Lawrence M.
Stanton

4.

[ECF No. 758] Motion to Exclude the Opinions and Testimony of Stephen King,
Ph.D.

C.

Other Issues

1.

Scope of trial as discussed in Defendants’ Joint Additional Submission Regarding

Trial Plan (Doc. 923, June 23, 2016) in light of Plaintiffs' allegations, exhibits and
proposed stipulations set forth in the Plaintiffs' portion of the Integrated PreTrial Order.
AMERICAN WATER DEFENDANTS
Motions In Limine
MOTION by American Water Works Service Company, Inc., West Virginia American Water
Company in Limine to Take Judicial Notice of National Oceanic and Atmospheric
Administration Weather Data
MOTION by American Water Works Service Company, Inc., West Virginia-American Water
Company, 2:14-cv-11011 in Limine to Exclude Evidence of Health Effects or Other Impacts or
Related Damages
MOTION by American Water Works Service Company, Inc., West Virginia American Water
Company in Limine to Preclude References to American Water Works Company

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MOTION by American Water Works Service Company, Inc., West Virginia American Water
Company in Limine to Exclude Evidence Concerning Unrelated Contamination or Spill Events
Other motions
MOTION by American Water Works Company, Inc., American Water Works Service Company,
Inc., West Virginia-American Water Company to Exclude Expert Testimony of Kate Novick,
PE.
MOTION by American Water Works Company, Inc., American Water Works Service Company,
Inc., West Virginia-American Water Company to Exclude the Expert Testimony of Wayne E.
Lorenz, P.E.
MOTION by American Water Works Company, Inc., American Water Works Service Company,
Inc., West Virginia-American Water Company to Exclude the Expert Testimony of David
Mazyck
MOTION by American Water Works Company, Inc., American Water Works Service Company,
Inc., West Virginia-American Water Company to Seal Relating to Defendants' Motion to
Exclude Expert Testimony
JOINT ADDITIONAL SUBMISSION REGARDING TRIAL PLAN by American Water Works
Company, Inc., American Water Works Service Company, Inc., West Virginia-American Water
Company, Eastman Chemical Company
(3)

A realistic and brief statement by counsel for plaintiff(s) and third-party
plaintiff(s) of essential elements which must be proved to establish any
meritorious claim remaining for adjudication, accompanied by supporting
legal authorities; and by counsel for defendant(s) and third-party
defendant(s) of essential elements which must be proved to establish any
meritorious defense(s), accompanied by supporting legal authorities,
including corresponding statements for counterclaims and cross-claims:

PLAINTIFFS
On October 8, 2015, the Court granted, in part, Plaintiffs’ Motion for class certification
respecting the fault issues. See Memorandum and Opinion Order (doc. 470). The classes
certified are as proposed by plaintiffs as follows:
All persons residing in dwellings supplied tap water by KVTP on
January 9, 2014;

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All persons or entities who owned businesses operating in real
property supplied tap water by KVTP on January 9, 2014; and
All persons who were regularly employed as hourly wage-earners
for businesses that operated in real property supplied tap water by
KVTP on January 9, 2014. See Id.
A.

Plaintiffs' Claims Against West Virginia American Water:
1)

The essential elements of Plaintiffs’ tort claims against West

Virginia American Water ("WVAW") are duty, breach of duty, and proximate causation. The
primary duty at issue with respect to WVAW, and the one that the Court has clearly recognized
as surviving WVAW’s “gist of the action” argument that all of Plaintiffs’ claims are in contract,
is the duty provided by W. Va. Code § 24-3-1: “Every public utility subject to this chapter shall
establish and maintain adequate and suitable facilities, safety appliances or other suitable
devices, and shall perform such service in respect thereto as shall be reasonable, safe and
sufficient for the security and convenience of the public, and the safety and comfort of its
employees, and in all respects just and fair, and without any unjust discrimination or preference.”
Plaintiffs also allege that WVAW owes a common-law duty of reasonable care to its customers
and the public. See syl. pt. 8, Strahin v. Cleavenger, 216 W. Va. 175, 603 S.E.2d 197 (2004)
(“The ultimate test of the existence of a duty to use care is found in the foreseeability that harm
may result if it is not exercised. The test is, would the ordinary man in the defendant's position,
knowing what he knew or should have known, anticipate that harm of the general nature of that
suffered was likely to result?”). Plaintiffs must prove that WVAW breached at least one of these
duties, and that the breach caused damages—in this case, for purposes of the instant trial, that it
caused or contributed to the contamination of the water supply or to the extent and duration of
the Do Not Use advisory.

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Plaintiffs have already proven to the Court’s satisfaction that WVAW breached its
contracts with its customers following the chemical spill on January 9, 2014, both by failing to
deliver a supply of water that was usable for the purposes under the contract and by delivering to
customers water that was not safe, not potable, and not pure and wholesome. The outcome of the
contract claims hinges solely on WVAW’s affirmative defense of impracticability, the elements
of which WVAW must set forth.
In this trial phase Plaintiffs will prove the negligence element as it relates to fault for the
contamination of the drinking water supply.
B.

Plaintiffs' Claims Against Eastman Chemical Company:

Plaintiffs allege that Eastman Chemical Company is at fault for the contamination of the
area’s water supply because Eastman (1) failed to warn its customer about storage
incompatibilities due to the potential for Crude MCHM to corrode carbon steel tanks and (2)
neglected to comply with industry standard product stewardship principles to “know your
customer” and ensure its buyer had both the means and the inclination to store and handle
Eastman’s product safely. Eastman knew Crude MCHM was corrosive, failed to warn Freedom
Industries of the corrosive nature of the chemical and Eastman’s chemical did in fact corrode
through Tank 396. Despite shipping millions of pounds of its commercialized waste product to a
tank farm teetering on a riverbank just above a drinking water intake and sending its primary
customer contact to review the tanks at the site, Eastman took no action to ensure public safety.
The essential elements of Plaintiffs’ tort claims against Eastman for the purposes of this
trial phase are duty, breach of duty, failure to warn and proximate causation. Just as with
WVAW above, Eastman’s duty is based in the foreseeability of the harm that may result if it is
not exercised and the test against which Eastman’s conduct must be measured is one of whether

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Eastman knew or should have known that “harm of the general nature of that suffered was likely
to result.” See Id at 197, Syl. Pt. 8.
One engaged in the manufacture and sale of toxic chemicals certainly is in a position to
understand that myriad statutes, regulations and industry standards impose a duty to prevent
toxic chemicals from escaping into the environment by issuing proper warnings to accompany
one’s toxic products as they enter the stream of commerce.
In denying Eastman’s economic loss summary judgment motion, this Honorable Court stated:
Plaintiffs contend, however, that the injury was, among other things, to the
water itself as their property, and that this injury required plaintiffs to remediate
by flushing in order to obtain entirely new water. Put differently, the
contamination of the water by an alien substance, Crude MCHM was precisely
was injured the water…”
Doc. 1005, at 31-32.

Thus, as the Court has already found, the damages flowing from Eastman’s well-established duty
to warn of chemical characteristics making it likely that a chemical may be escape from a carbon
steel tank are certainly foreseeable as damages proximately caused by Eastman’s breach of duty.
Similarly, Eastman’s failure to monitor its customer’s storage and handling of its product – given
the relative degrees of sophistication, the quantities of product sold (averaging approximately 4-5
million pounds per year through bi-weekly shipments of about 45,000 pounds each), the nature
of the product (commercialized “by product” otherwise requiring expensive incineration, its
hazards and corrosivity) and Eastman’s first-hand knowledge of the conditions at the tank farm –
and take action to ensure public safety make it foreseeable that a tank leak could enter the local
waterway and impact the community.

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C.

Plaintiffs' Claims Against Gary Southern

The Plaintiffs settled their claims with Gary Southern and are awaiting final approval by
the Court.
D.

Plaintiffs' Claims Against Dennis P. Farrell

The Plaintiffs settled their claims with Dennis P. Farrell and are awaiting final approval
by the Court.
DEFENDANT EASTMAN'S DEFENSES
a. Negligent failure to warn regarding Eastman's product
Counts One and Three involve allegations of a negligent failure to warn. In West
Virginia, the elements of a product liability claim based on negligence require proof that (1) the
manufacturer owed the consumer a duty to warn; (2) the product was defective thereby breaching
that duty; and (3) the breach of the duty was a proximate cause of the plaintiff's injuries. See
Philip Combs and Andrew Cooke, Modern Prods. Liab. Law in W. Va., 113 W. Va. L. Rev. 417,
452 (2011) [hereinafter referred to as "Combs"]; see also Aikens v. Debow, 541 S.E.2d 576, 58081 (W. Va. 2000).
Under West Virginia law, the question of whether a duty is owed turns on the
foreseeability of harm." Hoschar v. Appalachian Power Co., 739 F.3d 163, 174 (4th Cir. 2014).
A defendant is therefore not liable for damages which are the result of an event "which was not
expected and could not have been anticipated by an ordinary prudent person." Matthews v.
Cumberland & Allegheny Gas Co., 77 S.E.2d 180 (W. Va. 1953).
Here, Plaintiffs have repeatedly failed to identify any duty that Eastman owed to them,
including any evidence that Eastman owed Plaintiffs a duty to take affirmative measures to
ensure the safe handling of its products following its sale of crude MCHM to Freedom

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Industries. 1 Plaintiffs fail to point to any existing law, regulation or rule that would require
Eastman to inspect Freedom's storage facilities or monitor Freedom's conduct. Nor is there any
such duty at common law. Ashworth v. Albers Med., Inc., 410 F. Supp. 2d 471, 480 (S.D. W. Va.
2005) (Copenhaver, J.) (finding that "Plaintiff has identified no existing law, regulation or rule
placing a duty on [defendant] to police its distributors. The court finds that [defendant] had no
legal duty, at common law, to do so."). Nor have Plaintiffs demonstrated legal authority to
support their contention that Eastman had a duty to warn under the circumstances at issue.
Eastman had no involvement in preparing the MSDS for Shurflot 944, because the product was
manufactured, distributed, and sold solely by Freedom Industries. Because Shurflot 944 was not
manufactured by Eastman, Eastman owed no duty of care to Plaintiffs regarding Freedom's
product. See Eastman's Motion in Limine Regarding Eastman's Alleged Legal Duties,
incorporated herein by reference.
Additionally, Eastman will prove that it acted reasonably at all times in the nature, timing
and content of its warnings regarding the sale of Crude MCHM. The warnings and information
contained in Eastman's SDS related to Crude MCHM were reasonable, accurate and appropriate.
Finally, Crude MCHM is neither defective nor unreasonably dangerous and Eastman used
appropriate care in the marketing, packaging, selling and distributing of Crude MCHM.
b. Gross Recklessness
Count Seven alleges that Eastman acted with gross negligence. Grossly negligent conduct
occurs only if the plaintiff can demonstrate that the defendant acted with very great negligence,
that is, the defendant demonstrated more than ordinary inadvertence or inattention. See Stone v.

1

See Eastman's Motion for Summary Judgment on Responsible Care [ECF No. 726], Memorandum of Law in
Support [ECF No. 727], and Reply in Support; Eastman's Motion for Partial Summary Judgment [ECF No. 756],
Memorandum of Law in Support [ECF No. 757], and Reply in Support, expressly incorporated herein by
reference.

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Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944); State v. Peak, 408 S.E.2d 300, 304 n. 4 (W. Va.
1991). Gross negligence, on the other hand, constitutes a higher degree of negligence. Where a
plaintiff seeks to establish gross negligence, the plaintiff must present "affirmative proof tending
to magnify the negligence." Crawford v. General Motors Corporation, No. 5:06 CV 62, 2007
WL 1960611, at *5 (N.D. W. Va. July 2, 2007). In other words, if a plaintiff cannot meet the
elements giving rise to a negligence claim, then a claim for gross negligence fails.
c. Strict Liability - failure to warn.
Count Thirteen also involves allegations of a failure to warn. There are three elements to
make out a prima facie case for a strict liability warnings claim: (1) the product was defective in
that it was not reasonably safe for its intended use (2) due to an absent or inadequate warning
that that a reasonably prudent manufacturer should have included at the time the product was
made and (3) which proximately caused the plaintiff's injury. Cooke, at 430 (citing Ilosky v.
Michelin Tire Corp., 307 S.E.2d 603, 605 (W. Va. 1983)). There is no duty to warn in this
context if the alleged danger is not "foreseeable to the manufacturer or seller." Id. at Syl. pt. 3.
Eastman provided Freedom with a sufficiently informative Material Safety Data Sheet
("MSDS") for MCHM. The MSDS complied fully with federal law governing hazardous
chemical labeling. Moreover, the alleged defect must be a proximate cause of the plaintiff's
injuries. A failure to warn claim fails in the absence of a showing that the user would have
avoided injury if the product had carried the plaintiff's proposed warning. Tracy v. Cottrell, 524
S.E.2d 879 (W. Va. 1999); Wilkinson v. Duff, 575 S.E.2d 340, 341 (W. Va. 2002); Bertovich v.
Advanced Brands & Importing, Co., No. 5:05-cv-74, 2006 WL 2382273, at *7-8 (N.D. W. Va.
Aug. 17, 2006).

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Here, the warning offered by Plaintiffs would not have prevented the spill, because Crude
MCHM is not corrosive as Plaintiffs allege and did not contribute to the leak of Tank 396.
Rather, a superseding cause brought about the leak, being the conduct of Freedom Industries.
Where the actions of one or more tortfeasors constitute an intervening cause, such actions
operate to break the chain of causation and relieve the remainder from liability. In general, a
"willful, malicious, or criminal act" will serve as a superseding cause if those acts were not
reasonably foreseeable. Marcus v. Staubs, 736 S.E.2d 360, 372 (W. Va. 2012) (citing Yourtee v.
Hubbard, 474 S.E.2d 613, 620 (W. Va. 1996)).
Additionally, there is no evidence that any post-spill conduct by either Freedom
Industries or West Virginia American Water would have been different had any further or
different information been provided by Eastman.

Thus, there is no proximate cause and

Plaintiffs' claims fail.
Further, as set forth above, Eastman's duty to provide appropriate warnings do not run to
the Plaintiffs herein as Freedom's criminal release of Shurflot 944 was not foreseeable. See
Eastman's Motion in Limine Regarding Eastman's Alleged Legal Duties, incorporated herein by
reference.
Additionally, Eastman will prove that it acted reasonably at all times in the nature, timing
and content of its warnings regarding the sale of Crude MCHM. The warnings and information
contained in Eastman's SDS related to Crude MCHM were reasonable, accurate and appropriate.
Finally, Crude MCHM is neither defective nor unreasonably dangerous and Eastman used
appropriate care in the marketing, packaging, selling and distributing of Crude MCHM.
d. Counts Eleven, Fifteen, Seventeen, and Nineteen are Improper at this Trial Phase

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Plaintiffs' claims for Negligent Infliction of Emotional Distress (Count Eleven), Public
Nuisance (Count Fifteen), Trespass (Count Seventeen), and Medical Monitoring (Count
Nineteen) should be barred from this phase of the trial. Plaintiffs identified the liability issues as
to Defendants in their April 15, 2016 trial plan submission, which included breach of contract,
negligence and statutory negligence against some or all of the American Water defendants, and
strict liability and common law negligence against Eastman. ECF No. 696, at pp. 3-8. The
liability phase of trial may also include a factual determination of what proximately caused the
impact of Crude MCHM on the water supply for the Kanawha Valley Treatment Plant.
However, the Court rejected the request for class certification as to any issues of damages
asserted by the Plaintiffs. See Eastman's Motion in Limine and Combined Memorandum of Law
Regarding Damages and Health Effects [ECF No. 982], incorporated herein by reference.
e. Count Nineteen – Medical Monitoring
Plaintiffs' claim for Medical Monitoring (Count Nineteen) is also inappropriate because
Plaintiffs improperly seek to presume that liability for the other torts at issue equates to liability
for medical monitoring. To claim medical monitoring under West Virginia law, each Plaintiff
must establish that (1) he has, relative to the general population, been significantly exposed (2) to
a proven hazardous substance (3) through the tortious conduct of the defendant (4) as a
proximate result of which the plaintiff has suffered an increased risk of contracting a serious
latent disease (5) the increased risk of disease makes it reasonably necessary for the plaintiff to
undergo periodic diagnostic medical examinations different from what would be prescribed
absent exposure; and (6) monitoring procedures exist that make the early detection of a disease
possible. Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 432-33 (W. Va. 1999). The
exposure is significant only if the plaintiff has been exposed to "a larger quantity of the toxic

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substance or has been exposed for a longer duration than the general population." Rhodes v. E.I.
du Pont de Nemours and Co., 253 F.R.D. 365, 373 (S.D. W. Va. 2008).
Furthermore, "[l]iability for medical monitoring is predicated upon the defendant being
legally responsible for exposing the plaintiff to a particular hazardous substance." Id. To
establish that a substance is hazardous, "[t]he plaintiff must present scientific evidence
demonstrating a probable link between exposure to a particular compound and human disease."
Id. Here, the elements of the "claims relating to the negligence of Eastman in its dealings with its
customer for Crude MCHM" clearly differ from the showing Plaintiffs must make to prove that
the tortious conduct of Eastman was the proximate cause of significant exposure to a proven
hazardous substance. Further, Plaintiffs cannot prevail on a medical monitoring claim because
Plaintiffs cannot prove that they were exposed to a hazardous substance and that Plaintiffs are at
an increased risk of contracting a serious latent disease. The EPA designated Crude MCHM as
non-hazardous waste, meaning that it is not harmful or fatal when ingested or absorbed.
Plaintiffs' own expert witness confirms this, admitting that Crude MCHM is not a high-risk
chemical, nor is it acutely toxic.
f. Count Fourteen – Strict Liability for Ultra Hazardous Activity
This claim has been expressly abandoned by the Plaintiffs. See Plaintiff's Reply in
Support of Proposed Trial Plan filed May 3, 2016 [ECF No. 717], at p. 7.
g. Count Twenty-one - Violation of the Toxic Substance Control Act.
The parties have stipulated that determination of this claim shall not be submitted to the
jury.

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AMERICAN WATER DEFENDANTS
Plaintiffs and class members have asserted claims against WVAWC in contract and tort.
On September 27, 2016, the Court entered an Order finding a breach of WVAWC’s contracts
with its customers. [Doc. 964 at pp.11-13]. The Court further held that customers’ tort claims
were not barred by the “gist of the action” doctrine, but that “customers who allege injuries
under both a negligence theory and a breach of contract theory must elect whether to proceed on
contract or in tort.” [Id. at p.23]. WVAWC has submitted a filing to the Court [Doc. ---]
regarding the timing of that election and requests that the Court resolve the election issue prior to
trial.
(1)

Negligence

If trial proceeds in tort, Plaintiffs and class members must prove during this phase that
WVAWC owed class members a duty of care; that WVAWC breached that duty; and such
breach proximately caused the contamination of the water supply. See, e.g., syl. pt. 7, Strahin v.
Cleavenger, 216 W.Va. 175, 603 S.E.2d 197 (2004) (“Negligence is the violation of the duty of
taking care under the given circumstances. It is not absolute, but is always relative to some
circumstance of time, place, manner, or person.”) (internal quotations and citation omitted); syl.
pt. 3, McCoy v. Cohen, 149 W.Va. 197, 140 S.E.2d 427 (1965) (“Proximate cause is a vital and
an essential element of actionable negligence and must be proved to warrant a recovery in an
action based on negligence.”). The establishment of a prima facie case is subject to the defense
that the negligent and wrongful conduct of Freedom Industries and/or others was an intervening
and superseding cause. See, e.g., syl. pt. 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80
(1963); syl. pt. 2, Anderson v. Baltimore & O. R. Co., 74 W.Va. 17, 81 S.E. 579 (1914).

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(2)

Breach of Contract

If trial proceeds in contract, the Court has held that, unless WVAWC establishes it
impracticability defense, there has been a breach of WVAWC’s customer contract, leaving as the
remaining issue. The Supreme Court of Appeals has set forth the elements of the doctrine of
impracticability as follows:
Under the doctrine of impracticability, a party to a contract who
claims that a supervening event has prevented, and thus excused, a
promised performance must demonstrate each of the following: (1)
the event made the performance impracticable; (2) the
nonoccurrence of the event was a basic assumption on which the
contract was made; (3) the impracticability resulted without the
fault of the party seeking to be excused; and (4) the party has not
agreed, either expressly or impliedly, to perform in spite of
impracticability that would otherwise justify his nonperformance.
Syl. pt. 2, Waddy v. Riggleman, 216 W.Va. 250, 606 S.E.2d 222 (2004).
(3)

Statutory Contribution

WVAWC (and AWWSC) reserve the right and would intend to exercise any statutory
rights of contribution provided by former Section 55-7-13 of the West Virginia Code, which is
applicable to this action. It states:
Where a judgment is rendered in an action ex delicto against
several persons jointly, and satisfaction of such judgment is made
by any one or more of such persons, the others shall be liable to
contribution to the same extent as if the judgment were upon an
action ex contractu.
C.

AWWSC

AWWSC is an affiliated company that provides certain administrative and operational
services to WVAWC pursuant to an Agreement between them. AWWSC has no contractual
relationship with class members, and no claims for breach of contract have been asserted by
Plaintiffs and class members against AWWSC.

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In addition, AWWSC is not a “public utility” defined by the PSC Act as subject to W.Va.
Code § 24-3-1. See, e.g., W.Va. Code § 24-1-2 (defining “public utility”); W.Va. Highlands
Conservancy v. Public Serv. Comm’n, 206 W.Va. 633, 637 n.12, 527 S.E.2d 495, 499 n.12
(1998) (per curiam) (recognizing that, in addition to parent company, an affiliated service
corporation was not a public utility). 2 As a result, Plaintiffs’ and class members’ only possible
ground for relief against AWWSC lies in common law tort.
At this phase, Plaintiffs must prove that AWWSC owed class members a duty of care; that
AWWSC breached that duty; and such breached proximately caused the contamination of the
water supply. See, e.g., syl. pt. 7, Strahin, 216 W.Va. at 175, 603 S.E.2d at 197; syl. pt. 3,
McCoy, 149 W.Va. at 197, 140 S.E.2d at 427. Moreover, as courts have recognized, including
the Court herein, tort liability does not lie for the alleged failure to perform a contractual duty,
but requires negligent affirmative conduct. See, e.g., Blankenship v. Westfield Ins. Co., No.
2:14–cv–24740, 2015 WL 2338619, at *2 (S.D.W. Va. May 13, 2015) (“West Virginia adheres
to the widely recognized principle that the failure to perform a contractual obligation does not
create tort liability.”); syl. pt. 9, Lockhart v. Airco Heating & Cooling, Inc., 211 W. Va. 609, 567
S.E.2d 619 (2002) (holding that tort liability does not arise “from a mere omission to perform a
contract obligation”); Chamberlaine & Flowers, Inc. v. Smith Contracting, Inc., 176 W.Va. 39,
42, 341 S.E.2d 414, 417 (1986) (“Misfeasance, or negligent affirmative conduct, in performing a
contract generally subjects the actor to tort liability in addition to contract liability for physical
harm to persons and tangible things. On the other hand, there is generally no tort liability for
failing to do what one has contracted to do, unless there is some duty to act apart from the
contract.”). Accordingly, it is not sufficient for Plaintiffs to merely show that AWWSC failed to
2

AWWSC previously requested dismissal of any breach of contract or statutory tort claims against it based
upon the same arguments and rationale for which the Court dismissed the parent company, American Water
Works Company, Inc. See Doc. 755 at 18 n.15. Plaintiffs failed to respond to or otherwise address this point.

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perform a contractual duty it owed to WVAWC. Instead, Plaintiffs would be required to show,
at the very least, that AWWSC had a duty to Plaintiffs and class members and engaged in
affirmative, negligent conduct that proximately caused a contamination of the water supply.

(4)

A brief summary of the material facts and theories of liability or defenses:

PLAINTIFFS
In 1969, during very public debates and hearings about the siting of the intakes for the
new treatment plant, WVAW informed the West Virginia Public Service Commission (“PSC”)
that, if it was not permitted to site an intake on the Kanawha River near Chelyan, it would put its
main intake on the lower Elk River adjacent to the new treatment plant and continue to maintain
the existing Coonskin Shoals intake, situated several miles higher up the Elk River. The reason
that WVAW’s engineering consultant gave to the PSC was the possibility of chemical spills on
the lower Elk, between the new plant intake and the old Coonskin intake. Following the PSC’s
decision (which rejected the Chelyan intake on the Kanawha River), WVAW submitted designs
for the new plant to the West Virginia Bureau for Public Health (“BPH”). Those designs
depicted a second raw water line, not from the plant site intake, entering the treatment plant. In
the 1970s, after the treatment plant was constructed and the old Coonskin intake retired, WVAW
continued to submit bills to the West Virginia Department of Highways, which was then
involved in the construction of interstate highways in the vicinity of the Coonskin intake and its
associated raw water piping, for costs associated with replacing the old 30-inch raw water mains
with new 30-inch raw water mains. Despite informing regulators of its plan and intention to
keep the Coonskin intake open and available as an auxiliary in the event of chemical spills,
WVAW had no such intention, and quickly retired the intake after completing the new treatment

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plant and new intake. WVAW used the lines connecting the plant to the old Coonskin intake as a
distribution line to communities upriver. Consequently, the old Coonskin intake should have
been available but was not available as an auxiliary or supplemental source of uncontaminated
raw water when WVAW learned of the Freedom spill on January 9, 2014.
In 1999, WVAW applied for permission to upgrade its treatment plant’s filters and other
equipment in order to increase the plant’s production capacity from 40 million gallons per day
(“MGD”) to 50 MGD.

WVAW insisted to the PSC, and the PSC’s Consumer Advocate

Division, which initially opposed the upgrade, that this increase in production capacity was
necessary because WVAW projected maximum day demands—defined as the highest average
24-hour average demand in a year—as high as 48 MGD. Yet, when faced with a maximum day
demand scenario on January 7 and January 8, 2014, of less than 44 MGD, WVAW inexplicably
failed to utilize its excess production capacity to meet the demand, and instead allowed storage to
drop to dangerously low levels, imperiling the water system not just from the risk of
contamination of the source water but also from a risk of de-pressurization resulting from a
common power outage. While storage was low and dropping on January 7 and all during the 12hour day shift on January 8, WVAW’s production remained below 40 MGD. Production did not
increase to 40 MGD until the evening of January 8, and did not go above 42 MGD until after
WVAW was notified of the spill above its intake (around noon on January 9) and decided it
could not risk even a short shutdown to gather more information and let the spill pass, which it
would ordinarily have done had storage not been depleted. In the event, the actual plume of
MCHM passed the intake very quickly, unusual and extensive foaming was observed between
2:00 or 2:30 pm and ended around 3:07 pm, and would have been avoided by a brief shutdown.

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The dangerously low storage situation on January 9, 2014, was made worse by the years
of inexcusable neglect of the distribution system, resulting in an intolerable water loss situation,
far in excess of the PSC’s target of 15% unaccounted for water. In 2008, in response to a PSC
order, WVAW hired a third party to do a water loss study and make recommendations. In May
2008, that third party recommended that WVAW step up its water main replacement rate from a
below industry standard rate of around 0.3% per year to 1.5% per year. The third party believed
that by increasing spending on main replacements and making several other lower cost changes
and improvements, within five years it would reduce its water loss situation to within the PSC
target. Instead, WVAW got into a protracted fight with the PSC over rates, and in 2011 actually
reduced its main replacement rate to below 0.1%. WVAW had almost 40% unaccounted for
water—water lost to leaks and breaks—far in excess of the PSC’s target of 15%. This extreme
and excessive water loss stressed the limited storage available even more on January 9, 2014.
However, it should be noted that despite these outrageous levels of water loss and the extreme
system neglect, WVAW could have avoided the disaster simply by utilizing its excess production
capacity of up to 50 MGD to overcome the total demands, including water loss, and keep the
storage tanks at levels necessary to support a brief shutdown.
The theories of liability against WVAW are tort, primarily for violations of W. Va. Code
§ 24-3-1 requiring adequate facilities, reasonable service, and safe and sufficient service; breach
of contract for violations of various provisions requiring that WVAW supply usable water, that
the water supplied by potable and not injurious to health, and that WVAW maintain adequate
facilities; and tort for failure to exercise reasonable care.
Eastman knew, from its experiences with similar crude products and basic principles of
organic chemistry, that the Crude MCHM it sold to Freedom was likely to be corrosive to

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stainless [sic] steel and should be stored in tanks made of stainless steel or other corrosion
resistant materials. Eastman did not advise Freedom of this need, Crude MCHM corroded
Freedom’s tank (Tank 396) over the eight years it was stored in there alone (2004 to 2012), and,
as a result, the Elk River source water became contaminated with Crude MCHM. Eastman’s
duty to provide all necessary warnings and instructions to its customers sounds in tort—both
negligence and strict product liability.

Manufacturers have a duty to supply all necessary

warnings and instructions for safe handling to downstream purchasers and users.
Eastman also violated industry standards by selling millions of pounds per year of this
corrosive waste product without proper warnings to or vetting of its customer, Freedom
Industries. Eastman violated industry standards by failing to take corrective action, including
termination of the business relationship, following a site visit to Freedom’s facility by its sales
person, Glenda Flick, in the mid-2000s, to look at Freedom’s tanks. Under clear industry
guidelines and standards, this site visit should have triggered other product stewardship inquiries
aimed at determining whether Freedom, whose facility clearly lacked proper secondary
containment and had obvious breaches in its dike wall and was otherwise in patent disrepair, was
safely and responsibly storing and handling Crude MCHM. Had Eastman fulfilled its duty of
reasonable care, defined by clear industry standards, Freedom would have had to shape up or
stop receiving shipments of MCHM. In either case, the Elk River would have been spared being
used as a repository for Eastman’s MCHM.

DEFENDANT EASTMAN
Crude MCHM is not corrosive nor is it dangerous or defective. Eastman complied with
all industry standards regarding the manufacture and sale of Crude MCHM to its customers. This
spill of Shurflot 944 and the effects of it were caused solely by the criminal negligence and

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misconduct of Freedom Industries in not properly maintaining its tanks and secondary
containment. In particular, the holes at the bottom of the tank were the result of years of neglect
by Freedom of the condition of the upper and lower surface of the tank floor.
Eastman's product and its warnings were not the proximate cause of the spill. First,
MCHM did not cause the corrosion in Tank 396. The physical and chemical properties of Crude
MCHM and testing which has been conducted by both Anamet Materials Engineering
Laboratory and by Eastman demonstrate that the tank corrosion which resulted in the Freedom
release was not caused by Crude MCHM. In fact, the physical and chemical properties of the
corrosion observed in Tank 396 are not consistent with Crude MCHM, but are consistent with a
well-documented corrosion phenomenon in the storage of petroleum products, especially those
that are exposed to rainwater like Tank 396.
Eastman used appropriate care in marketing, sale, and distribution of its product, Crude
MCHM, at all relevant times herein. Prior to manufacturing and selling crude MCHM, a
specialty co-product chemical, Eastman conducted toxicological testing which demonstrated
neither high risk nor significant acute toxicity from exposure to Crude MCHM. Eastman
incorporated these results into a Safety Data Sheet ("SDS"), which it distributes to every
purchaser.
Eastman first learned of the Freedom release at approximately 7:30 p.m. on the evening
of January 9, 2014, when a telephone inquiry from a Kanawha County Fire Chief was forwarded
to Eastman toxicologist, Dr. Steve Green. After the conversation with the Fire Chief, Dr. Green
returned to his office and immediately forwarded a Safety Data Sheet for Crude MCHM to the
relevant authorities and responders. Dr. Green remained available continuously to local and
federal authorities throughout the night. At 9:00 p.m. that evening, Dr. Green participated in a

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conference call with a number of local and federal authorities, providing all requested
information and answering questions regarding the chemical and toxicological properties of
Crude MCHM. Dr. Green was informed that Freedom had enlisted a local DuPont scientist to
assist in developing an analytical method to measure Crude MCHM levels in the water and was
asked to assist DuPont. Following the call, Dr. Green enlisted the assistance of other Eastman
scientists who immediately began to work on developing the analytical method. Eastman
provided the analytical method to WV American Water by 10:54 p.m. on that same night. In the
days following the initial release, Eastman and Dr. Green continued to proactively provide
support to the authorities and to provide information regarding Crude MCHM, sometimes risking
the disclosure of confidential and proprietary Eastman business information.
Plaintiffs cannot show that Eastman had any duty to police the operations of companies
that purchased Crude MCHM. To prevail against Eastman on any of the theories pled by
Plaintiffs, Eastman must owe a duty to Plaintiffs which was breached and caused damages. Smith
v. Lusk, 533 Fed. Appx. 280, 285 (4th Cir. 2013). Plaintiffs have not demonstrated a duty to warn
under the circumstances at issue. Freedom released its own proprietary Freedom product,
Shurflot 944, into the Elk River, rather than Eastman's crude MCHM. Although Shurflot 944
contains crude MCHM, it is a blend made by reacting multiple components, including corrosive
hydrochloric acid in a solution of water, resulting in an altered chemical composition, with its
own unique MSDS created by Freedom. Separate and apart from the MCHM MSDS, Freedom
Industries prepared and used an MSDS for Shurflot 944, and a separate MSDS for another
branded mixture, Shurflot 945. Eastman had no involvement in preparing the MSDS for Shurflot,
as the chemical was manufactured, distributed, and sold solely by Freedom Industries.

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Eastman owed no duty to Plaintiffs regarding Freedom's product, particularly any duty to
warn of the properties of Shurflot 944, in view of the sophisticated user and bulk supplier
doctrines. The sophisticated user and bulk supplier doctrines both relieve Eastman of any duty to
warn. As applied to toxic tort actions, West Virginia has adopted the sophisticated user and bulk
supplier doctrines, which provides exceptions to the general duty of a manufacturer to warn the
ultimate user of the hazards of its products. Under the sophisticated user doctrine, the focus is on
the product manufacturer's reasonableness of reliance on its customer to generate or pass on
warnings to end users. The bulk supplier doctrine, which is closely related to the sophisticated
user defense, concerns the burden which would be imposed on the manufacturer if it were bound
to directly warn all users. Roney v. Gencorp, 654 F. Supp. 2d 501, 507 (S.D. W. Va. 2009); see
also Parker v. E.I. DuPont de Nemours & Co., 121 N.M. 120 (Ct. App. 1995); Baker v.
Monsanto Co., 962 F. Supp. 1143 (S.D. Ind. 1997); Shell Oil Co. v. Harrison, 425 So. 2d 67, 70
(Fla. Dist. Ct. App. 1982).
Here, the doctrines apply because Eastman supplied MCHM to Freedom Industries in
bulk. Further, Eastman provided the requisite labeling documentation, along with the MSDS for
MCHM to Freedom Industries, and Freedom Industries used MCHM to formulate its own
product, Shurflot 944, which had its own separate and distinct labeling requirements and MSDS.
Eastman reasonably relied on Freedom Industries to comply with federal laws and regulations
concerning Freedom's formulated product. Any responsibility to warn the public was born on the
formulator of the product that was released. Because Freedom Industries was in the best position
to warn the ultimate consumer, Eastman is relieved from any duty owed to Plaintiffs as a matter
of law.

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Moreover, Freedom's criminal negligence is a superseding cause that was unforeseeable
to Eastman. Where the actions of one or more tortfeasors constitute an intervening cause, such
actions operate to break the chain of causation and relieve the remainder from liability. In
general, a "willful, malicious, or criminal act" will serve as a superseding cause if those acts were
not reasonably foreseeable. Marcus v. Staubs, 736 S.E.2d 360, 372 (W. Va. 2012) (citing Yourtee
v. Hubbard, 474 S.E.2d 613, 620 (W. Va. 1996)). The Office of the West Virginia Attorney
General ("WVAG") launched an official investigation into the incident on January 13, 2014. The
WVAG investigated this spill and issued a Report finding that years of neglect and deteriorating
conditions at the Freedom plant were overlooked and ignored by both Freedom and its
predecessors.
Freedom and several of its officials and employees pled guilty to violations of the Clean
Water Act, creating prima facie evidence of Freedom's fault. Hersh v. E-T Ent., Inc., 752 S.E.2d
336 (W. Va. 2013). On or about December 17, 2014, Freedom and its officers were indicted for
allegations regarding the January 9, 2014 incident. Specifically, Freedom and its officers were
indicted for failing to exercise reasonable care in its duty to operate the Etowah facility in a safe
and environmentally-sound manner, in that it failed to comply with applicable law, regulations,
guidelines, failed to follow its own internal operating procedures, and failed to conform to
common industry standards for safety and environmental compliance. Freedom's officers
ultimately pled guilty to several violations of the Clean Water Act, including: 1.) negligent
discharge of a pollutant; 2.) unlawful discharge of refuse matter (strict liability); and 3.)
negligent violation of permit condition.
The Attorney General's Report's most disturbing findings were that Freedom employees
and outside consultants warned of a potential catastrophic incident due to poor tank conditions

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and design problems for years, and in some cases offered solutions. A Freedom employee issued
a memo in March of 2010 which highlighted the structural problems with the tanks, noting they
were sitting in water due to a lack of adequate drainage. Noting several deficiencies potentially
affecting the structural integrity of the tanks, the memo warned that any failure of this weld or
steel plate would result in a potentially catastrophic failure yet Freedom did nothing. This
evidence shows that any additional warning Plaintiffs insist Eastman should have supplied, if
provided, would not have prevented the spill because Freedom ignored all prior warnings
regarding tank safety. See Tracy v. Cottrell, 524 S.E.2d 879 (W. Va. 1999) (A failure to warn
claim fails in the absence of a showing that the user would have avoided injury if the product had
carried the plaintiff's proposed warning); see also Wilkinson v. Duff, 575 S.E.2d 340, 341 (W.
Va. 2002); Bertovich v. Advanced Brands & Importing, Co., No. 5:05-cv-74, 2006 WL 2382273,
at *7-8 (N.D. W. Va. Aug. 17, 2006). Accordingly, Eastman's alleged failure to warn is not a
proximate cause of the spill.
AMERICAN WATER DEFENDANTS
The month of January 2014 marked the beginning of WVAWC’s fiftieth year in the
Kanawha Valley. At that time, WVAWC – a public water utility, the operations and revenues of
which are closely regulated by government agencies – was providing safe, clean, reliable
drinking water from nine water treatment plants to more than 500,000 West Virginians, about
215,000 in the Kanawha Valley.
WVAWC’s Kanawha Valley Treatment Plant (“KVTP”), which completed construction
in 1973 consistent with approvals from the Public Service Commission of West Virginia and the
West Virginia Bureau of Public Health, draws water from the Elk River approximately 1.5 miles
downstream from Freedom site. The KV system has a record of excellent performance and had

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not received a notice of violation for drinking water under the Safe Drinking Water Act
(“SDWA”) from the BPH for more than ten years before the Freedom spill.
In the days leading up to January 9, 2014, West Virginia was in the grips of a “polar
vortex,” a large pocket of very cold air that typically sits over the polar region during the winter
season. The extreme cold and temperature fluctuation of the polar vortex imposed significant
challenges upon the KV system. Despite these challenges, WVAWC continued to provide its
customers with high-quality, potable water and absent the admitted criminal negligence of
Freedom Industries, WVAWC would have continued to do so.
At approximately 8:16 a.m. on the morning of January 9, 2014, the West Virginia
Department of Environmental Protection received a complaints of an odor at the Freedom
Industries tank farm on Barlow Drive in Charleston, West Virginia. Meanwhile, personnel from
Kanawha County Emergency Management and the Charleston Fire Department were also
responding to complaints. DEP inspectors arrived at Freedom Industries around 10:30 or 11:00
a.m.

Around the same time, shortly after 10:36 a.m., John O’Dell, a Freedom employee

observed liquid pooling around Tank 396, and flowing towards the retaining wall or dike.
O’Dell reported the leak to Denny Farrell, President of Freedom Industries who was with DEP
officials.
Just before noon, at 11:56 a.m., a representative of the WVDEP, Richard Hackney, called
WVAWC to report the Freedom spill.

Jon Jarvis, water quality supervisor, took the call.

Hackney told him MCHM, which he described as a flocculant, had spilled into the Elk River and
that only around 1,000 gallons had spilled, and was leaking down the bank into the river. At
approximately 12:30 p.m., Jarvis traveled to the Freedom site to investigate and respond to the
spill.

WVAWC was provided limited and conflicting information concerning the spill by

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Freedom.

WVAWC’s efforts were further complicated by the facts that MCHM was an

unregulated chemical under the SDWA and, thus, there were no treatment techniques, no
drinking water health standard, and no protocol to measure it.
After repeated requests by DEP personnel on site, at approximately 12:05 p.m., Bob
Reynolds, Freedom Industries’ safety officer, called the DEP Emergency Response Spill Hotline
to report a “leaky tank” at Freedom Industries, located on the Elk River. Reynolds indicated that
they discovered a hole in the tank but that the secondary containment unit was containing the
spilled material. He said they had pumped out the tank and an emergency response crew was
coming in to clean up the material in the dike. He informed the DEP that the material was not
hazardous or toxic. He did not know if it was going into a creek or stream, but stated that the
dike was containing the material and they did not anticipate any going into the river.
Meanwhile, Jon Jarvis was given an MSDS by Freedom personnel. The MSDS was
prepared by Eastman Chemical, the manufacturer of MCHM. Review of the MSDSrevealed that
MCHM had a very high median lethal dose (LD50) rating, suggesting low toxicity . At around
1:30 p.m., Jarvis, after reviewing the MSDS and having discussions with DEP officials,
confirmed that MCHM was in fact a frothing agent, and not a flocculant.
To prepare for the spill, Jarvis directed the plant operators to add Powdered Activated
Carbon (PAC) and other additives to the plant process to augment treatment if water
contaminated with MCHM entered the KVTP; this was started at 1:00 p.m. Jarvis believed that
the plant could treat MCHM based upon his understanding of the chemical from reviewing the
MSDS; his observation of the spill at the site, including the fact that none of the workers were
wearing personal protective equipment; information from Freedom that only 1,000 gallons
spilled; and his belief that given the small amount of the leak, the MCHM would dilute in the Elk

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River. At Jarvis’ direction, operators at the plant increased the frequency of smell testing of the
water for the distinctive odor of MCHM. At 2:00, they concluded that MCHM had arrived at the
intake. They continued to track the chemical by smell as it passed through the plant. Personnel
believed the MCHM was being treated until additional taste and odor testing indicated the
chemical had breached the plant’s filters at around 4:00 or 4:15 p.m. WVAW personnel
consulted their regulators, the BPH as well as the DEP, beginning around 4:20 p.m. and the
collective decision was made to issue a Do Not Use order, which was issued at 5:45 p.m.,
advising customers not to use water for drinking, cooking or bathing, but allowing use for
sanitation and fire protection.

The order was publicized by Governor Tomblin at a press

conference at 6:00 p.m.
If trial proceeds in tort, Plaintiffs and class members must prove during this phase that
WVAWC owed class members a duty of care; that WVAWC breached that duty; and such
breach proximately caused the contamination of the water supply. See, e.g., syl. pt. 7, Strahin,
216 W.Va. at 175, 603 S.E.2d at 197; syl. pt. 3, McCoy, 149 W.Va. at 197, 140 S.E.2d at 427.
Plaintiffs’ negligence claims are also subject to the defense that the negligent and wrongful
conduct of Freedom Industries and/or others was an intervening and superseding cause. See,
e.g., syl. pt. 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963); syl. pt. 2, Anderson v.
Baltimore & O. R. Co., 74 W.Va. 17, 81 S.E. 579 (1914). Freedom’s criminal negligence
intertwined with the challenges imposed on the Kanawha Valley system by the extreme cold and
temperature fluctuation of the polar vortex gripping West Virginia in the same period created a
combination of events for WVAWC that could not be addressed without a partial interruption in
normal water delivery. Because of conditions at the plant related to the polar vortex conditions,
WVAW could not shut off the pumps at the intake without risking depressurization of the

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system. If the system were to depressurize, the result would have been an extended period when
no water was available to customers for any purpose, including sanitation and fire protection.
Continuing to produce water subject to the partial DNU order and preserving sanitation and fire
protection for its customers and the public was an appropriate and reasonable response by
WVAWC to the Freedom spill.
Moreover, WVAWC’s design and operation of the KVTP in the years and days before
Freedom caused the chemical spill also were reasonable and consistent with the standard of care
for a reasonable water utility. Plaintiffs cannot demonstrate that actions taken by WVAWC prior
to the Freedom spill, including with respect to the former Coonskin intake, source water
protection, plant operation and distribution system storage, and system maintenance, were
unreasonable for a water utility or, even if they were unreasonable, that such actions by WVAVC
proximately caused the contamination of the water supply.
If the trial proceeds in contract, the Court has held that WVAWC’s impracticability
defense is the remaining issue to be resolved. See syl. pt. 2, Waddy, 216 W.Va. at 250, 606
S.E.2d at 222. The four elements of the impracticability defense are met as, inter alia, the
service interruption was not due to the fault of WVAWC, but arise from the criminal negligence
of Freedom and the absence of information (including an accurate detection and measurement
method and a health standard) and active misinformation provided regarding the nature and
extent of the chemical spill.
C.

AWWSC

As set forth above in Section III, Plaintiffs must show that AWWSC had a duty to
Plaintiffs and class members and engaged in affirmative, negligent conduct that proximately

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caused a contamination of the water supply. Plaintiffs have failed to articulate their claims
against AWWSC and have no such evidence.

(5)

For each party, a single listing of the contested issues of fact and law,
together with case and statutory citations:

PLAINTIFFS
A. Plaintiffs' Listing of Contested Issues of Fact and Law with Respect to
Defendant Eastman
1) Whether Eastman was negligent to sell Crude MCHM to Freedom, to monitor
Freedom’s storage and handling of the product and to continue selling Crude
MCHM to Freedom following a site visit in 2012;
2) Whether Eastman had a duty to warn Freedom of Crude MCHM’s properties
and if so whether Eastman breached that duty;
3) Whether

Eastman’s

warnings,

government

filings

and

Hazard

Communications associated with Crude MCHM were adequate;
4) Whether Eastman spoliated evidence when it burned the load of Crude
MCHM bound for Freedom on January 9, 2014;
5) Whether Eastman failed to exercise reasonable care by failing to provide
advice to Freedom, its customer, about storage of Crude MCHM in stainless
steel or other non-corrosive tanks?
6) Whether Eastman’s failure to provide advice to Freedom, its customer about
storage of Crude MCHM in stainless steel or other non-corrosive tanks was a
proximate cause of the contamination of the water system?

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7) Whether Eastman failed to exercise reasonable care by failing to inquire about
Freedom’s storage and handling practices, record of tank inspections, and
other housekeeping matters after its sales representative visited the Freedom
facility in 2012 and observed the condition of the facility?
8) Whether Eastman’s failure to inquire about Freedom’s storage and handling
practices, record of tank inspections, and other housekeeping matters after its
sales representative visited the Freedom facility in 2012 and observed the
condition of the facility was a proximate cause of the contamination of the
water system?
9) Whether Eastman knew that Crude MCHM was corrosive to carbon steel
tanks;
10) Whether Eastman failed to communicate its knowledge of the corrosivity of
crude MCHM to proper personnel with Eastman’s Health, Safety and
Environment Department;
11) Whether Eastman failed to properly communicate necessary information, in
its possession, through the Safety Data Sheet for Crude MCHM;
12) Whether Eastman knew or should have known it was negligent to sell a toxic
chemical like Crude MCHM to Freedom Industries under the circumstances
know [sic] to or reasonably discoverable by Eastman;
13) Whether scientific evidence demonstrates that Eastman’s Crude MCHM did,
in fact, corrode the hole into Freedom’s carbon steel tank through which the
toxic plume leaked into the Elk River;

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B.

Plaintiffs' Listing of Contested Issues of Fact and Law with Respect to
Defendant West Virginia American Water
1) Whether WVAW failed to exercise reasonable care by failing to utilize the
full storage capacity of the Kanawha Valley District and by failing to address
any system hydraulic problems impacting its ability to utilize the storage
capacity of the Kanawha Valley District?
2) Whether WVAW’s failure to utilize the full storage capacity of the Kanawha
Valley District and by failing to address any system hydraulic issuess [sic]
impacting its ability to utilize the storage capacity of the Kanawha Valley
District was a proximate cause of the contamination of the water system?
3) Whether WVAW failed to exercise reasonable care by permitting storage to
be depleted in the days preceding January 9?
4) Whether WVAW’s failure to exercise reasonable care in allowing storage to
be depleted was a proximate cause of the contamination of the water system?
5) Whether WVAW failed to exercise reasonable care by failing to evaluate the
chemicals stored in the immediate zone of critical concern and failing to have
a plan for addressing the risk posed?
6) Whether WVAW’s failure to exercise reasonable care by failing to evaluate
the chemicals stored in the immediate zone of critical concern and failing to
have a plan for addressing the risk posed was a proximate cause of the
contamination of the water system?
7) Whether WVAW failed to exercise reasonable care by failing to maintain the
Coonskin intake as an auxiliary intake after it built the KVTP in 1972 and
thereafter?

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8) Whether WVAW’s failure to exercise reasonable care by failing to maintain
the Coonskin intake as an auxiliary intake after it built the KVTP in 1972 and
thereafter was a proximate cause of the contamination of the water system?
9) Whether WVAW failed to exercise reasonable care by failing to follow the
recommendation of Earth Tech in 2008 and of American Water Works
Service Company’s planning engineers in 2011 when it failed to invest in a
higher rate of water main replacement for the Kanawha Valley District, and
even dramatically cut spending on main replacements in 2011?
10) Whether WVAW’s failure to exercise reasonable care by failing to follow the
recommendation of Earth Tech in 2008 and of American Water Works
Service Company’s planning engineers in 2011 when it failed to invest in a
higher rate of water main replacement, and even dramatically cut spending on
main replacements in 2011, was a proximate cause of the contamination of the
water system?
11) Whether the conduct of WVAW and/or Eastman Chemical was in reckless
disregard and warrants an award of punitive damages;

DEFENDANT EASTMAN
1) Did Eastman owe a duty to Plaintiffs in this situation?
2) Did Eastman breach any duty owed to Plaintiffs?
3) Was Crude MCHM reasonably safe for its intended use?
4) Were the warnings provided by Eastman the kind and type that a reasonably
prudent manufacturer would have included at the time Crude MCHM was
made?

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5) Was the breach of any duty by Eastman proximate cause of the release of
Shurflot 944?
6) Was the breach of any duty by Eastman a proximate cause of any exposure
of Plaintiffs to Shurflot 944?
7) Was the criminal conduct of Freedom Industries in releasing Shurflot 944 a
superseding or intervening cause?

AMERICAN WATER DEFENDANTS
(i)

Contested Issues of Law

The proposed Pre-Trial Order is being submitted based upon and subject to the current
status of the case as reflected in the Court’s prior rulings, including, but not limited to, the
rulings on WVAWC’s Motion to Dismiss Plaintiffs’ First Amended Consolidated Class Action
Complaint [Doc. 194] and its Motion for Summary Judgment with Respect to Breach of Contract
[Doc. 379]. Based upon the outcome of the Court’s rulings, certain legal issues may no longer
be contested for purposes of the fault trial and have been omitted herein. However, their
omission should not be construed as a waiver of any objections or exceptions to the Court’s prior
rulings. Subject to this caveat, WVAWC is unware of any contested issues of law beyond those
set forth in the pending motions identified in Section II above.
(ii)

Contested Issues of Fact

1.

Whether WVAWC failed to exercise reasonable care with respect to the design

and operation of the KVTP and Kanawha Valley distribution system prior to learning of the
Freedom chemical spill on January 9, 2014 or in its immediate response to the Freedom chemical
spill on January 9, 2014.

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2.

Whether the failure on the part of WVAWC to exercise reasonable care with

respect to the design and operation of the KVTP and Kanawha Valley distribution system prior
to learning of the Freedom chemical spill on January 9, 2014, or in its immediate response to the
Freedom chemical spill on January 9, 2014, if any, proximately caused the contamination of the
water supply.
3.

Whether Freedom Industries (and/or its employees or officers) failed to exercise

reasonable care or was otherwise at fault in causing the contamination of the water supply.
4.

Whether Freedom Industries’ fault (or the fault of its employees and officers) was

an intervening and superseding cause of the contamination of the water supply.
6.

Whether it was impracticable for WVAWC to comply with its contracts with its

customers following the Freedom spill.
7.

Whether the impracticability resulted without the fault of WVAWC.

C.

AWWSC

(i)

Contested Issues of Law

1.

Whether AWWSC can be liable for a breach of contract, as it has no contractual

relationship with class members. [AWWSC believes that Plaintiffs and class members are not
making or have waived any claim of breach of contract against AWWSC, but include this item to
obtain confirmation from Plaintiffs or the Court.]
2.

Whether AWWSC can be liable on the basis of statutory tort / negligence, as it is

not a “public utility” as defined by the PSC Act. See, e.g., W.Va. Code § 24-1-2 (defining
“public utility”); W.Va. Highlands Conservancy v. Public Serv. Comm’n, 206 W.Va. 633, 637
n.12, 527 S.E.2d 495, 499 n.12 (1998) (per curiam) (recognizing that, in addition to parent
company, an affiliated service corporation was not a public utility).

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3.

Whether AWWSC owed Plaintiffs and class members any duty of care in

common law tort.
4.

Whether Plaintiffs have any evidence that AWWSC engaged in affirmative,

negligent conduct that proximately caused the contamination of the water supply.
(ii)

Contested Issues of Fact

To the extent there could be any contested issues of fact with respect to AWWSC, it
would be whether Plaintiffs can prove that AWWSC engaged in affirmative, negligent conduct
and, if so, whether any such negligent conduct proximately caused the contamination of the
water supply.

(6)

Stipulations:

PLAINTIFFS
Plaintiffs propose the following Stipulations:
A. At 10:45 AM on January 9, 2014 Billie Suder arrived at the Charleston Office for WV
American Water on Pennsylvania Avenue.
B. From 11:00 AM until 12:00 PM, Billie Suder participated in her personal performance
review with WVAW President Jeffrey McIntyre, during which time her phone was off.
C. At 12:35 PM, Felicia Abrams sent Billie Suder an e-mail (CGC-619)
D. At 12:53 PM, Water Quality Supervisor Jon Jarvis sent Billie Suder an email requesting
that she call him
E. At 1:03 PM, Billie Suder received an additional e-mail from Jon Jarvis attaching the 2005
MSDS for crude MCHM. She spoke with Mr. Jarvis, who was at the Freedom Industries
spill site at this time.

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F. By 1:42 PM, WVAW personnel understood that crude MCHM is a frother and not a
flocculant.
G. At 1:52 PM, Billie Suder left the Pennsylvania Avenue office for the KVTP and stopped
for lunch at a Hardee’s restaurant, arriving at the plant at 2:14 PM.
H. At 2:30 PM, Billie Suder performed Jon Jarvis’ annual review.
I. At 3:00 PM, Billie Suder recived an e-mail about foam dissipating (CGC-1383).
J. From 3:00 – 3:30 PM, Ms. Suder gave an employee a performance review.
K. At 4:05 PM, chemical odor and taste became noticeably present in plant filter effluent.
L. At 4:09 PM, Billie Suder received a call from WVAW External Affairs Director Laura
Jordan
M. At 4:11, Billies Suder called Matt Corson, who told her he would find AWS Water
Quality chief Mark Lechevallier to talk with her.
N. At 4:16 PM, Billie Suder called JD Douglas of the WV Bureau for Public Health.
O. At 4:18 PM Billie Suder spoke with WV public health officials, who sent her a draft of a
Do Not Use Notice
P. At 4:24 PM Billie Suder sent the 2005 crude MCHM MSDS to Matt Corson and Mark
Lechevallier at AWW Service Company in Voorhees, NJ
Q. At 4:26 PM Billie Suder sent the Do Not Use Notice template form to External Affairs
Director Laura Jordan
R. From 4:33 to 5:03 PM Billie Suder spoke with Matt Corson and Mark LeChevallier; at
4:48 PM she sent them the Do Not Use Notice template.
S. At 5:00 PM, the first samples retained by WVAW were sent to its Huntington, WV lab
for analysis

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T. During a 9:00 PM call with Eastman toxicologist Steve Green, Billie Suder discussed the
2011 MSDS for crude MCHM with him; Mr. Green undertook to work with DuPont
chemists to set a GC/MS analysis protocol for crude MCHM in water samples; Eastman
undertook to deliver a sample of crude MCHM to DuPont.
U. By 11:00 PM, Huntington observed MCHM peaks and estimated concentration.
V. From 11:25 PM on January 9 to 1:30 AM on January 10, Billie Suder and JD Douglas of
the WV Bureau of Public Health discussed the qualitative results of testing being
conducted
W. At 12:06 AM, WVAW received a method for conducting GC/MS analysis of crude
MCHM from Eastman (all taken from testimony about CGC29876)
X. 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.
Y. 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.
Z. 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.
AA.

The Do Not Use Water Notice remained in effect for all Kanawha Valley

customers on January 10, 2014.

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BB.

The Do Not Use Water Notice remained in effect for all Kanawha Valley

customers on January 11, 2014.
CC.

The Do Not Use Water Notice remained in effect for all Kanawha Valley

customers on January 12, 2014.
DD.

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.
EE.

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.

FF.

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.

GG.

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
water in those areas might be contaminated above the established health standard of one
part per million MCHM. Exhibit 7- CGC00000211.

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HH.

The Do Not Drink/Limited Contact Notice lasted until January 18, 2014 for

customers in the Buffalo, Frazier’s Bottom, and Pliny areas. Exhibit 8- CGC00000211.
II.

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 9CGC00012686.

JJ.

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.

KK.

CGC204 is a business record within the meaning of FRE 803(6), is accurate and

is admissible into evidence.
LL.

The spreadsheet reflecting the SCADA data regarding tank levels is a business
record within the meaning of FRE 803(6), is accurate and is admissible into evidence.
(See Documents- KvTankLevels_010112 to 010113_9295_AM.xls- 2012 SCADA Tank
Levels; KvTankLevels_010113 to 010114_22119_PM.xls- 2013 SCADA Tank Levels;
KvTankLevels_010114 to 010115_24510_PM..xls- 2014 SCADA Tank Levels;
KvTankLevels_010115 to 030616_25140_AM.xls- Jan. 1 to March 6, 2015 SCADA
Tank Levels.)

MM.

In his prepared testimony to Congress, WVAW President Jeffrey McIntyre swore

as follows: As of January 9th the Kanawha Valley system had experienced a significant
number of line breaks caused by extreme cold associated with the polar vortex followed
by warming weather. Because of the line breaks and customers running their tap to

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prevent freezing, system storage was low and losing water even though the water
treatment plant was running at near full capacity.
NN.

WVAW breached its contracts with its customers following the chemical spill on

January 9, 2014, both by failing to deliver a supply of water that was usable for the
purposes under the contract and by delivering to customers water that was not safe, not
potable, and not pure and wholesome.
OO.

The authenticity under FRE 901(b)(4) or 902(11) of lab results disclosed during

discovery and/or expert compilations of lab results disclosed during discovery.
PP. The authenticity under FRE 901(b)(4) or 902(11) of Eastman Chemical documents
produced in discovery.
QQ.

The authenticity under FRE 901(b)(4) or 902(11) of WVAW documents produced

in discovery.
RR.

The authenticity of disclosed expert reports, figures, table and illustrations.

DEFENDANT EASTMAN
At present, the parties have not been able to reach an agreement on stipulations.
AMERICAN WATER DEFENDANTS
1.

Prior to the Freedom spill, MCHM was an unregulated chemical under the Safe

Drinking Water Act.
2.

Prior to the Freedom spill, there was not a health-based screening level for

MCHM in drinking water.
3.

A health-based screening level of 1 part per million was not approved by

WVAWC’s government regulators until January 10, 2014 at 4:30 p.m.

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4.

Prior to the Freedom spill, there was not any analytical method to test for and

measure the concentration of MCHM in water.
5.

The odor threshold for MCHM is less than 0.15 ppb, an extraordinarily low

concentration which makes the ability of the expert human nose to detect this compound far
greater than any analytical method available today.

Michael J. McGuire, “Expert Panel

Estimates of the Odor Threshold Concentration, Odor Recognition Concentration and Odor
Objection Concentration for Crude 4-methylcyclohexanemethanol in Water” at 17 (WVTAP
Mar. 16, 2014).
7.

At the concentration of MCHM present in the raw water at 10:25 p.m. on January

9, 2014, it would not have been possible for the treatment process to achieve a concentration of
MCHM in finished water less than the odor threshold.
8.

At the concentration of MCHM present in the raw water at 10:25 p.m. on January

9, 2014, it would not have been possible for the treatment process to completely remove the
presence of MCHM in finished water.
9.

A partial interruption in service with the ability to use water for toilet flushing and

fire protection is a preferred alternative to a complete interruption in water service for all
purposes.
10.

Evidence concerning the existence, terms, and/or conditions of any insurance

policies issued to or for the benefit of the American Water Defendants or any one of them, or any
insurance policies issued to or for the benefit of Eastman, is inadmissible pursuant to Rule 411 of
the Federal Rules of Evidence and should not be mentioned during the “fault” and “comparative”
fault trial phase.

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Given the compressed time frames in this matter, WVAWC and AWWSC have only
recently received Plaintiffs’ trial exhibit list, which identifies nearly 800 exhibits, with some
exhibits being a reference to voluminous numbers of documents. As such, WVAWC and
AWWSC remain in the process of making their objections to Plaintiffs’ exhibit list. Until that
process is complete, WVAWC and AWWSC are not prepared to propose or otherwise enter into
broad and categorical stipulations regarding authenticity and/or admissibility. When that process
is complete, WVAWC and AWWSC anticipate they will be able to confer with Plaintiffs and
reach mutually agreeable stipulations concerning some specific items of evidence.

(7)

Suggestions for the avoidance of unnecessary proof and cumulative evidence.

PLAINTIFFS
Allowing the introduction of expert compilations of lab results or other voluminous
evidence as FRE 611 summaries in lieu of introduction of the lab sheets themselves. Any such
evidence or summaries thereof, if not already exchanged in the expert reporting process, must be
disclosed by 5 PM on the day before any witness who may use such evidence will testify.

DEFENDANT EASTMAN
Eastman does not have any suggestions for the avoidance of unnecessary proof and
cumulative evidence at this time.

AMERICAN WATER DEFENDANTS
By WVAWC and AWWSC: A trial plan must be entered to provide fair notice of the
scope of the trial to the parties and to avoid unnecessary and irrelevant proof and evidence for
the class fault trial.

While the Court’s rulings on summary judgment motions and other

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submissions have clarified the scope of the trial in part, those rulings have not finally resolved all
questions of what issues will and will not be tried, and the appropriate evidentiary limitations
that would accompany a limitation in scope.

The Court previously indicated that it was

tentatively predisposed to follow the trial plan set forth in the Defendants’ Joint Additional
Submission Regarding Trial Plan (Doc. 923, June 23, 2016). See Trans. of August 5, 2016
Status Conference, at 16-17. That same proposed plan, subject to limited revisions to recognize
the Court’s ruling with respect to the dismissal of AWWC and the determination that a breach of
contract occurred (so that focus is on the defense of impracticability), remains the most
appropriate and efficient plan for moving the case forward.
First, entry of a final trial plan that makes clear that post-spill liability issues are not
included in the class fault trial (as urged by the plaintiffs) will allow the parties and the Court to
make final determinations regarding the nature and extent of evidence that will be allowed at the
trial. Though Plaintiffs have stated repeatedly that they do not intend to pursue claims relating to
alleged liability of WVAWC for actions taken after the Freedom spill, they have indicated
through their exhibit list, proposed stipulations and discussions regarding motions in limine that
they still intend to seek to introduce certain documents and testimony relating to the post-spill
period (including evidence of exposure and alleged annoyance and inconvenience damages) and
alleged unreasonable actions by WVAWC. A clear trial plan order should resolve these disputes
and narrow the evidence, and the class trial can move forward focused on the alleged fault of
Defendants and the comparative fault and causal responsibility of Freedom.
Second, the Court should confirm that no questions regarding the potential for or amount
of or potential multiplier for any award of punitive damages will be addressed in the class fault
trial. Plaintiffs have again included the potential application of punitive damages as part of their

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listing of contested issues of fact and law in the Integrated Pretrial Order. See No. 11 (“Whether
the conduct of WVAW and/or Eastman Chemical was in reckless disregard and warrants an
award of punitive damages.”).

This Court specifically rejected Plaintiffs’ proposed class

treatment of punitive damages in its Order on class certification (Doc. 470, at 42) and reiterated
that position in its recent Order on economic loss, see Doc. 1005 at 6 n.1 (“The court denied
plaintiffs’ request for the certification of a Rule 23(b)(3) damages class, as well as plaintiffs’
request to certify for class treatment the issue of punitive damages. See Mem. Op. and Order 39,
42, ECF No. 470.”). As explained in multiple prior filings by Defendants regarding the trial
plan, the practical and legal problems with Plaintiffs’ proposed approach include juries reexamining issues addressed by other juries and the need to confirm a reasonable relationship
between compensatory and punitive damages and to assess the overall extent of punitive effect
on the Defendants. See Doc. 946 at 5-8; Doc. 709 at 11-16; Doc. 792 at 8-9; Doc. 626 at 3-5.
Final resolution that the trial does not include punitive damages issues will ensure the trial plan is
consistent with the way in which the case has proceeded to date and avoid jury confusion and
distraction with unnecessary proof.
In addition, WVAWC and AWWSC believe that rulings before trial on the pending
Motions to Exclude Expert Testimony, Motions In Limine, and its Motion for Judicial Notice
will reduce unnecessary proof and increase the efficiency of evidentiary presentation at trial.
WVAWC and AWWSC are working with the other parties to attempt to reach stipulations on
exhibit authenticity and other issues that would eliminate the need for certain foundational
testimony and reduce exhibit objections raised with the Court.

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(8)

Suggestions concerning any need for adopting special procedures for
managing potentially difficult or protracted aspects of the trial that may
involve complex issues, multiple parties, difficult legal questions or unusual
proof problems.

PLAINTIFFS
Plaintiffs have no such suggestions other than cooperative and efficient trial practice by
the Parties as has been shown throughout the litigation.

DEFENDANT EASTMAN
Eastman does not anticipate any potentially difficult aspects of trial or unusually complex
issues requiring special procedures at this time.

AMERICAN WATER DEFENDANTS
Throughout the course of the litigation, WVAWC and AWWSC have identified certain
documents produced in discovery as “confidential business information” subject to the Protective
Orders entered by the Court in this matter. The bases for those claims of confidentiality differ
for different documents, but certain of the documents have been identified as highly confidential
and their release strictly controlled because their public release raises security concerns regarding
potential targeting of the KVTP or other infrastructure for attack by third parties. Certain of
those documents that have been designated as confidential and highly confidential appear on the
exhibit list for the plaintiffs and/or the defendants. We ask that the Court entertain a discussion
at the pretrial conference regarding how to address these confidentiality issues in the context of
the trial.

(9)

A list of special voir dire questions, if any, that counsel request be asked of
the jury panel;

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PLAINTIFFS
See attached Plaintiffs’ special voir dire questions attached hereto and identified as
“Exhibit 10.”

DEFENDANT EASTMAN
See Eastman's list of special voir dire questions, attached hereto as "Exhibit 11."
AMERICAN WATER DEFENDANTS
In addition to the items identified in Local Rule of Civil Procedure 47.1(a), the WVAWC
and AWWSC request that the Court consider posing the additional voir dire, attached as "Exhibit
12," to the jury panel.

(10)

A statement setting forth a realistic estimate of the number of trial days
required;

Plaintiffs believe that they will need ten (10) days for their case-in-chief, the water
company defendants believe that they will need ten (10) to fifteen (15) days for their case-inchief and Eastman Chemical Company believes that it will need seven (7) days for its case-inchief. Thus, the parties believe that between twenty-seven (27) and thirty-two (32) days are
needed for trial.

(11)

Any courtroom technology requested for use at trial and a certification that
the court's technology staff has been notified regarding such use no later
than 7 days before the scheduled commencement of trial; and

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PLAINTIFFS
Plaintiffs will need the courtroom projector and audio-visual equipment and the court’s
technology staff has been notified regarding such use. The Parties will file a joint motion
detailing such requests as set forth in the local trial rules.

DEFENDANT EASTMAN
Eastman requests the use of the existing courtroom technology, particularly the
courtroom projector and audio-visual equipment to publish exhibits to the jury. Eastman further
requests that the Court allow counsel to bring a projector and projection screen to place in front
of the wall across from the jury box in addition to the Court's existing setup. Counsel for
Eastman certifies that its technology consultant will confer with the court's technology staff
regarding such use.
AMERICAN WATER DEFENDANTS
The parties request that the ability to play video depositions (from a laptop) and an
overhead/DOAR/ELMO projector be available for trial. The parties will coordinate among
themselves the presentation of exhibits electronically.

Counsel will contact the Court’s

technology staff no later than the deadline established by this Court regarding all technology
issues.

(12)

Any other matters relevant for pretrial discussion or disposition, including
those set forth in Fed. R. Civ. P. 16;

PLAINTIFFS
Plaintiffs have no such matters to present to the Court.

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DEFENDANT EASTMAN
Defendant Eastman has no other matters to present to the Court at this time.
AMERICAN WATER DEFENDANTS
The parties are presently unaware of any other matters in addition to those identified
above.
Respectfully submitted by the parties this 24th day of October, 2016.

PLAINTIFFS
By Counsel
/s/ Kevin W. Thompson
Kevin W. Thompson, Esquire (WVSB# 5062)
David R. Barney, Jr., Esquire (WVSB# 7958)
Thompson Barney
2030 Kanawha Boulevard, East
Charleston, West Virginia 25311
Telephone: (304) 343-4401
Facsimile: (304) 343-4405
kwthompsonwv@gmail.com
drbarneywv@gmail.com
mailto:drbarneywv@gmail.com
Van Bunch, Esquire (WVSB# 10608)
Bonnett Fairbourn Friedman & Balint PC
2325 E. Camelback Road, Suite 300
Phoenix, Arizona 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
vbunch@bffb.com
mailto:vbunch@bffb.com
Stuart Calwell, Esquire (WVSB# 0595)
Alex McLaughlin, Esquire (WVSB# 9696)
D. Christopher Hedges, Esquire (WVSB# 7894)
The Calwell Practice, LC
Law and Arts Center West
500 Randolph Street
Charleston, West Virginia 25302
Telephone: (304) 343-4323
Facsimile: (304) 344-3684
scalwell@calwelllaw.com

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amclaughlin@calwelllaw.com
chedges@calwelllaw.com
mailto:chedges@calwelllaw.com
Class Counsel

EASTMAN CHEMICAL COMPANY
By Counsel
/s/ Marc E. Williams
Marc E. Williams (WV Bar No. 4062)
Robert L. Massie (WV Bar No. 5743)
Melissa Foster Bird (WV Bar No. 6588)
NELSON MULLINS RILEY &
SCARBOROUGH LLP
949 Third Ave., Suite 200
Huntington, WV 25701
Phone: (304) 526-3501
Fax: (304) 526-3541
Email: marc.williams@nelsonmullins.com
Email: bob.massie@nelsomnullins.com
Email: melissa.fosterbird@nelsonmullins.com
Robert Scott (Admitted pro hac vice)
Marquel S. Jordan (Admitted pro hac vice)
BLANK ROME LLP
717 Texas Avenue, Suite 1400
Houston, Texas 77002
Phone: (713) 228-6601
Fax: (713) 228-6605 Fax
Email: rscott@blankrome.com
Email: mjordan@blankrome.com
COUNSEL FOR DEFENDANT
EASTMAN CHEMICAL COMPANY

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WEST VIRGINIA-AMERICAN WATER
COMPANY and AMERICAN WATER
WORKS SERVICE COMPANY, INC.
By Counsel

/s/ Thomas J. Hurney, Jr.
Thomas J. Hurney, Jr. (WVBN 1833)
Brian R. Swiger (WVBN 5872)
Al F. Sebok (WVBN 4722)
L. Jill McIntyre (WVBN 8837)
Jackson Kelly PLLC
P. O. Box 553
Charleston, West Virginia 25322
500 Lee Street, East, Suite 1600 (25301)
(304) 340-1000
Kent Mayo (Admitted pro hac vice)
Steven Leifer (Admitted pro hac vice)
Baker Botts, L.L.P.
1299 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 639-1122
Representing Defendants West Virginia-American
Water Company, and American Water Works Service Company, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CRYSTAL GOOD, et. al.,
Plaintiffs,
CIVIL ACTION NO.: 2:14-CV-01374
(Consolidated with Case No. 2:14-11011;
Case No. 2:14-13164; Case No. 2:1413454)
HON. JOHN T. COPENHAVER, JR.
AMERICAN WATER WORKS
COMPANY, et. al.,
Defendants.

CERTIFICATE OF SERVICE
This undersigned attorney hereby certifies that a copy of the foregoing "Amended Proposed
Integrated Pretrial Order" has been served on the 24th day of October, 2016. This Certificate of
Service is being provided to the Court and counsel through the ECF system.
David R. Barney, Jr., Esq.
Kevin Thompson, Esq.
Barney Thompson PLLC
2030 Kanawha Boulevard East
Charleston, WV 25311
Phone: 304.343.4401
Facsimile: 304.343.4405
Email: drbarneywv@gmail.com
Email: kwthompsonwv@gmail.com
Counsel for Plaintiffs

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Van Bunch, Esq.
Bonnett, Fairbourn, Friedman & Balint, P.C.
2325 E. Camelback Road, Suite, 300
Phoenix, Arizona 85016
Phone: 602.274.1100
Facsimile: 602.274.1199
Email: vbunch@bffb.com
Counsel for Plaintiffs
Stuart Calwell, Esq.
Alexander D. McLaughlin, Esq.
The Calwell Practice, LC
Law and Arts Center West
500 Randolph Street
Charleston, West Virginia 25302
Phone: 304.343.4323
Facsimile: 304.344.3684
Email: scalwell@calwell.com
Email: amclaughlin@calwelllaw.com
Counsel for Plaintiffs
Thomas J. Hurney, Esq.
Jackson Kelly, PLLC
500 Lee Street East, Suite 1600
P.O. Box 553
Charleston, West Virginia 25301
Phone: 304.340.1000
Facsimile:
Email: THURNEY@jacksonkelly.com
Counsel for Defendants
Kent Mayo, Esq.
Baker Botts LLP
1299 Pennsylvania Ave., NW
Washington, D.C. 20004-2400
Phone: 202.639.1122
Facsimile: 202.585.1007
Email: kent.mayo@bakerbotts.com
Counsel for Defendants

/s/ Robert L. Massie

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