Case 2:14-cv-01374 Document 1082 Filed 10/24/16 Page 1 of 6 PageID #: 37666 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT WEST VIRGINIA CRYSTAL GOOD, individually and as parent and next friend of minor children M.T.S., N.T.K. and A.M.S., West Virginia residents, et al. on behalf of themselves and all others similarly situated, Plaintiffs, Case No.: 2:14-CV-01374 Consolidated with: Case No. 2:14-11011 Case No. 2:14-13164 Case No. 2:14-13454 v. CONSOLIDATED CLASS ACTION AMERICAN WATER WORKS COMPANY, INC., a Delaware corporation, et al. Defendants. REPLY TO PLATINTIFFS’ MOTION FOR ADVERSE INFERENCE INSTRUCTION AGAINST WEST VIRGINIA AMERICAN WATER DUE TO SPOLIATION OF EVIDENCE Having reviewed the arguments submitted by West Virginia American Water Company (“WVAW”) in response to Plaintiffs’ motion for an adverse inference instruction, Plaintiffs would like to make the following points in reply. 1. One of the facts relayed by WVAW in its Response, ECF Doc. No.1050 at 2–3, is that Jon Jarvis was initially told that the chemical that had spilled was a flocculent, and that he was “like, well, that’s not going to hurt us.” Jarvis learned that the chemical was not a flocculent by 1:42 pm. See Exhibit 29 (attached). The critical time period for purposes of Plaintiffs’ Motion for Spoliation is the time period from approximately 2:00 pm, when MCHM was first detected by smell and foaming in the raw water at the intake, until 3:07 pm, when Billie Suder reported that the “worst of the spill has passed” and continuing until 5:00 pm when the 1 Case 2:14-cv-01374 Document 1082 Filed 10/24/16 Page 2 of 6 PageID #: 37667 first sample was collected and preserved for laboratory analysis. Thus, initial the information that the chemical was a flocculent was irrelevant to WVAW’s decision not to shut the intake and WVAW knew that the chemical was not a flocculent during the time period at issue, from which evidence was spoliated. WVAW cannot claim to have had no reason to think, from 2:00 pm to 5:00 pm, that the matter would not result in litigation because the chemical was a flocculent; it knew the chemical was not a flocculent by that time. 2. WVAW faults Plaintiffs for not asking to test samples that it collected and did preserve. However, none of those samples were collected and preserved during the critical time frame, 2:00 pm to 5:00 pm on January 9, when samples were purposefully poured out. Plaintiffs agree with the general proposition that MCHM degrades over time and there is little reason to perform an untimely test on samples collected months earlier, but this is particularly true of samples collected during the time frame that WVAW’s preserved samples were collected, where other samples and results are generally available. The absence of data is not from January 10 on, but from the afternoon of January 9. Plaintiffs have not declined any invitation to analyze samples collected from that time period; no such invitation has been extended. 3. Plaintiffs withdrew the initial motion for spoliation because the facts contained therein were more properly advanced in support of a state-law standard for spoliation rather than the more demanding federal standard for spoliation. There was no tactical or purposeful delay. The initial motion was filed at the deadline for dispositive motions and Daubert motions. Spoliation is not a dispositive motion, so Plaintiffs sought the opportunity to refine it. The second spoliation motion was filed at the deadline for motions in limine. While a spoliation motion is not technically a motion in limine, either, it is an evidentiary issue, and was appropriately filed at that deadline. 2 Case 2:14-cv-01374 Document 1082 Filed 10/24/16 Page 3 of 6 PageID #: 37668 4. The case of Handley v. Union Carbide Corp., 804 F.2d 264, 273 (4th Cir. 1986), is interpreting West Virginia’s “deliberate intent” statute, embedded within which is a requirement that, for purposes of overcoming employer immunity from tort suit, a Plaintiff-employee must show that the employer violated an industry standard that is well known and commonly accepted. It does not contain a common-law definition of “industry standard” but merely recites a statutory requirement that only certain kinds of industry standards suffice (i.e., those that are commonly accepted and well known) suffice to defeat employer immunity under the workers compensation statute. The case has unfortunately been misconstrued in one of this Court’s prior decisions in this case, perhaps owing to the issue having been argued by out-of-state lawyers who are unfamiliar with West Virginia’s unique exception to employer immunity under workers compensation laws. It should not be perpetuated any further. 5. WVAW on a couple of occasions notes that Plaintiffs “wish” that WVAW would have taken samples earlier on January 9, because the presentation of their case is hurt by the absence of the data. Response at 2, 11. This is tantamount to an admission that the evidence would have supported Plaintiffs’ theory of the case, which is obvious, because the water was a foaming stinking mess from 2:00 pm to 3:00 pm and then quit being a foaming stinking mess a couple of hours before the first sample was allegedly collected at 5:00 pm, when the MCHM concentration was still more than four times higher than any concentration measured ever again. Contrary to WVAW’s claim (Response at 11), even in the absence of the data, the record still contains proof that WVAW’s filters were overwhelmed by the foaming stinking mess that arrived between 2:00 pm and 3:00 pm on January 9. 6. With respect to the email sent by Billie Suder at 6:14 am, WVAW claims (Response at 16) that “Plaintiffs have failed to consider the possibility that samples were collected and 3 Case 2:14-cv-01374 Document 1082 Filed 10/24/16 Page 4 of 6 PageID #: 37669 preserved which were not subjected to GC-MS analysis.” That’s because, as Plaintiffs pointed out in their Memorandum (at 14), Ms. Suder said in her email that, We are sampling the raw water and plant process water . . . every hour or so and transporting the samples to Huntington for analysis.” See Plaintiffs’ Ex. 21, CGC00001402_0001 (emphasis added). She said they were subjecting them to analysis in that email, so where are the analyses? 7. Surprisingly, nowhere in WVAW’s Response does WVAW deny having collected samples of raw water before 5:00 pm on January 9, 2014, or having sent those samples for analysis. With respect to Plaintiffs’ evidence that the DuPont lab worker who developed the method stated in an email that the “water supply into the water company unit was running about 100 ppm when I first saw a sample,” WVAW’s only response is that it is hearsay. Conclusion For the reasons stated in Plaintiffs’ original motion, an adverse inference instruction should be given. Dated : October 24, 2016 Plaintiffs, By Counsel. /s/Alex McLaughlin, Esquire Stuart Calwell, Esq. (WVSB #0595) Alex McLaughlin, Esq. (WVSB #9696) D. Christopher Hedges, Esq. (WVSB #7894) The Calwell Practice, LC Law and Arts Center West 500 Randolph Street Charleston, West Virginia 25302 Phone: 304-343-4323 Facsimile: 304-344-3684 scalwell@calwelllaw.com amclaughlin@calwelllaw.com chedges@calwelllaw.com Kevin W. Thompson, Esq. (WVSB #5062) David R. Barney, Jr., Esq. (WVSB #7958) 4 Case 2:14-cv-01374 Document 1082 Filed 10/24/16 Page 5 of 6 PageID #: 37670 Thompson Barney 2030 Kanawha Boulevard, East Charleston, West Virginia 25311 Phone: 304-343-4401 Facsimile: 304-343-4405 kwthompsonwv@gmail.com drbarneywv@gmail.com Van Bunch, Esq. (WVSB #10608) Bonnett Fairbourn Friedman & Balint PC 2325 E. Camelback Road, Suite 300 Phoenix, Arizona 85016 Phone: 602-274-1100 Facsimile: 602-274-1199 vbunch@bffb.com Interim Class Counsel for Plaintiffs and the Class Mark F. Underwood, Esq. (WVSB #7023) Underwood Law Office 923 Third Avenue Huntington, West Virginia 25701 Phone: 304-522-0508 Facsimile: 304-399-5449 markunderwood@underwoodlawoffice.com Counsel for Plaintiffs P. Rodney Jackson, Esq. (WVSB #1861) Law Offices of Rod Jackson 401 Fifth Third Center 700 Virginia Street, East Charleston, West Virginia 25301 Phone: 843-780-6879 Facsimile: 304-345-7258 prodjackson27@yahoo.com 5 Case 2:14-cv-01374 Document 1082 Filed 10/24/16 Page 6 of 6 PageID #: 37671 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT WEST VIRGINIA CRYSTAL GOOD, et al. Plaintiffs, v. Case No. 2:14-cv-01374 Consolidated with: Case No. 2:14-11011 Case No. 2:14-13164 Case No. 2:14-13454 CONSOLIDATED CLASS ACTION AMERICAN WATER WORKS COMPANY, INC., a Delaware corporation, et al. Defendants. Certificate of Service The undersigned counsel for Plaintiffs hereby certifies that on October 24, 2016 the foregoing “REPLY TO PLATINTIFFS’ MOTION FOR ADVERSE INFERENCE INSTRUCTION AGAINST WEST VIRGINIA AMERICAN WATER DUE TO SPOLIATION OF EVIDENCE” was filed through the CM/ECF system which will send notification of the filing to counsel of record. /s/Alex McLaughlin Alex McLaughlin, Esq. (WVSB #9696) 6