the Buffalo Creek Disaster
A book by Gerald Stern

PART ONE


Prologue
    On the morning of the 26th February 1972  a coal company's massive coal-waste refuse pile which dammed a stream in middle fork hollow collapsed in the Buffalo Creek Valley. Over 130 million gallons of water and waste material devastated Buffalo Creek's sixteen communities. Over 125 people perished almost immediately, mostly women and children. There were over 4000 survivors but their 1000 homes as well as most of their possessions were destroyed.


Chapter one : the call for help

    At the time of the Disaster, Stern's law firm (Arnold & Porter's) had decided to permit one partner each year to spend all his time on pro bono publico cases (public interest cases). The third year of the program it was Stern's turn.
    One of Stern's friends asked him if he'd be willing to represent some of the survivors of the Buffalo Creek Disaster.
    The Buffalo Creek Citizens Committee had been formed two weeks after the disaster, they wanted revenge. The people in Buffalo had elected 2 members per community to be part of this committee (such a regular election was very unusual in a State known for its election miscarriages). They chose Charlie Cowan as their chairman. This man ran a gas station halfway down to the Buffalo Creek Valley. Charles Cowan wanted to be represented by a storng and independent law firm that “the company can't scare off or buy off”.


Chapter two : “An Act of God”

    The Dam which gave way was owned by the Buffalo Mining Company (BMC) a West Virginia Corporation whose sole stockholder was the Pittston Company. After the Disaster, Pittston's spokesman proclaimed that the break in the dam was caused by flooding : an act of God. This led to a popular misunderstanding : “God didn't do this, he wouldn't do that”.
    Ben Tudor, a local BMC official explained that the State was at fault because it did not let the BMC drain the black waste water from behind the dams for fear black water would kill the trout stocked in Buffalo Creek (“the States cares more for the fish than they did the people and now both are gone” B. Tudor). But a quick check of state records showed that the coal company had never made any such request to drain its dam.
    At the same time, Robert Reineke, a Pittston lawyer sent to the scene of the disaster said in an interview published by the NY Times that “the responsibility is Pittston's in the long range”. A declaration which was immediately altered by the publication of a telegram in which Mr Reineke denied having ever made any such statement : “It would be absurd for me to express any opinion about anyone's responsibility before the investigation is completed”. As G. Stern points out, maybe it was absurd to speculate about anyone's responsibility two days after the disaster, still the coal company's first press release blamed “heavy rains” and “rising flood waters”.
    Pittston hoped that the lawsuits would be filed against the BMC rather than Pittston.
    If the people sued the BMC (a West Virginia Corporation) their suit could only be brought before a West Virginia (WV) State court, but if they sued Pittston, a New York based company, they could do it in a federal court. The obvious reason for Pittston's strategy was that coal companies have more influence with the WV courts than they do with the less political federal courts. Therefore Stern's strategy was to ignore the BMC and sue Pittston.
    Federal Coal Mine Health and Safety Act of 1969 : it established federal standards in the construction of refuse piles and dams by coal companies but these standards only protected the coal miners (and not the public who lived around the coal mines) while he was working.
This act could not have been used since there were not employees on duty lost in the flood.
    There was some basis for holding the State of WV responsible for the Buffalo Creek Disaster (BCD) since a WV statute prohibits the construction of any dam or other obstruction over 15 feet in height across any stream or watercourse without a prior determination by the State that it is safe. The State of WV had never agreed that Dam 3 (which was 60 feet high) was safe. The State was at fault for not enforcing its own laws. But Arch Moore, the Governor of WV blamed the trouble on the media, the “irresponsible” media that publicized these attacks. Governor Moore qualified the mediatization “an even greater tragedy than the accident itself”.


Chapter three : “When in doubt, do the right thing”

    A few days later, the BMC publicly announced that they would open claims offices in the valley to receive and process claims (“assess claims and evaluate losses”) but refused to admit responsibility for the disaster. WV statute law makes the maximum amount payable in wrongful death cases so low that it doesn't pay for the heirs to refuse to settle. The WV limit for a wrongful death recovery is $10.000, unless the family can prove greater financial dependence on the deceased. In this case it is possible to be granted an additional sum (maximum $100.000). Since most of the deceased were housewives and children, Pittston argued that no one could be dependent on them.
    Arnold & Porter had not enough lawyers to handle the case properly so G. Stern decided to dedicate the rest of his pro bono partnership exclusively to this case. Since survivors could not afford to pay a legal fee to Arnold & Porter, the firm wuld represent them on a contingent-fee basis. If they won the firm would get a percentage of the award, if they lost, the firm would get nothing.


Chapter four : “Mountain Mama”

    The supreme court had recently held that organizations such as the Buffalo Creek Citizens Committee (BCCC) have the right to recommend particular lawyers to their members. Therefore, Amos Wilson's potential attempt to prohibit the firm from representing the BCCC would certainly be a failure. Amos Wilson was a famous WV layer who claimed the legitimacy of representation as the survivors' lawyer.
    The refuse pile was started in 1947 when the coal cleaning plant first opened. The coal cleaning plant (also called “tipple”) gives off an enormous amount of waste products, especially liquid refuse. In the early 1950s WV told the coal companies to stop discharging the black waste water from their tipples directly into the state's streams. So the BMC decided to build a dam across Middle Fork  Hollow in the early 1960s. This was Dam1 (a dam made of solid refuse). A pipe from the tipple discharged the black waste water at a point far upstream from Dam 1 so this water could filter through the refuse of Dam 1 before entering Buffalo Creek at Saunders. Pretty soon the solids that were conveyed by the liquid refuse silted up behind Dam 1, that's why Dam 2 was built in 1967, upstream from Dam 1. Dam 2 soon began to silt up too so Dam 3 was started upstream of Dams 1 and 2 in 1968 and finished by the end of 1970 (Pittston had then become the sole stockholder of the BMC). It was Dam 3 that caused the BCD two years later.
    Stern decided to make the contingent fee around 25% (below the usual charge which is 33 -1/3 %, but above a too low fee which could be attacked by Amos Wilson as a violation of the lawyer's Code of Professional Responsibility : taking a case for free when the client could afford to pay another lawyer).
    The Appalchian Research and Defense Fund (APPALRED), a public interest law firm had provided free legal advice to the BCCC and helped in the creation of that committee. Therefore Amos Wilson believed APPALRED had gotten the people to contact Arnold & Porter.


Chapter five : “Take care of my baby”

    Charlie's gas station was the place where Stern met the survivors. They were crushed. It was hard for them to sit up straight or to talk for long periods of time without averting their eyes. Tears came quickly and often. Years ago, the coal companies had decided to sell the formerly coal-company-owned towns to the people. They sold the wooden frame (“four walls and a roof”) and the miners took great pride in turning them into real homes. Now all had been washed away. Although many reached the high ground before the waters destroyed their homes, the sights they saw still haunted them. They had had to stand by helplessly and watch their friends being swept away. “You'd see your neighbor's house go by, everything they had worked for for so long”. The first thing they were asked after the BCD was to identify the dead bodies, many survivors could not even identify members of their own family at first because the black coal waste made them unrecognizable.


Chapter six : “They wasn't for sale”

    By the beginning of the summer, the federal government had provided trailers for the survivors to live in. But they were not assigned so that people from a particular camp would once again be living next to their neighbors, plus people baked in the trailers in the summer and bigger families were split in two because of the small size of the trailers.
    In the choice as to whom to sue, Stern chose Pittston rather than the BMC because he was afraid that in a state court logan county lawyers would pull tricks on him, whereas he could be the one to pull tricks in a federal court. Since Washington is the Home territory of Stern's firm it was possible to sue Pittston there, as well as in NY, Pittston's home base where it would have less control over the juries than in WV. But some legal research convinced Stern's team that Pittston could always force a transfer of the case to WV. So Stern settled on trying to sue in the federal court in WV in the US district court for the Southern District of WV. A limited form of judge-shopping was possible there. For instance Huntington had only one federal judge (judge Christie) while Charleston had two (judge Knapp & judge Hall). Stern chose Huntington and judge Christie who had once written an opinion permitting an injured person to sue a corporation's sole shareholder for injuries caused by the corporation. This is known as “piercing the corporate veil”. To get in a federal court, the WV plaintiffs would have to sue and out-of-state company (Pittston). But to sue Pittston, the BMC's sole shareholder, they would have to pierce the BMC's corporate veil. Piercing the corporate veil is rarely permitted, therefore Stern found another way to get the case in a federal court : arguing that Pittston had polluted a navigable stream in violation of the federal  Navigable Streams Act would make this a federal question and thus justify bringing the case before a federal court. But Stern decided to drop this argument and rely only on the hope of being allowed to pierce the corporate veil.
    But even if the case was kept before a federal court, it's the WV laws that would apply. And those laws had a maximum recovery fee of $110.000 for those killed by others. Stern tried to go round this limit by having research made on the creation of this law but it was fruitless. Stern also studied WV cases and found out that in cases where the defendant's conduct is merely careless or negligent the plaintiff can recover “compensatory damages”, but in cases where the defendant's conduct is willful, wanton or reckless, the plaintiff can recover additionnal “punitive damages”. If the plaintiffs could only prove Pittston's negligence they would only collect compensatory damages and it might be better for the people to take the money that Pittston would offer at the claims office, on the other hand, if they succeeded in proving Pittston's recklessness they would win lots more.
    Pittston announced that the claims offices would give money : $4000 to a Pittston employee who had lost a six-room house. This settlement was unreasonably low.
    In various public statements, Pittston also began to argue that if Pittston, not God, was at fault, and even if Pittston, not the BMC, was the proper company to sue, Pittston's conduct was not negligent and certainly not reckless. This is what Pittston's president Nicholas T. Camicia said in his testimony during the Senate hearings 3 months after the BCD : “the embankment had been constructed by experienced coal-mining men in accordance with methods and techniques for years characteristic of the manner in which such water impoundments have been constructed throughout WV and elsewhere”. This “custom and usage” argument was not safe for Stern's team discovered a 1926 case decided by the US District Court for the Southern District of WV which was very similar to the BCD : a refuse pile which blocked a stream gave way, the refuse pile was burning, water caused this burning refuse pile to explode and then rush down a mountain where it buried a home and its seven occupants. The Court denied the act-of-god claim of the coal company and said that the “custom and usage” argument was no defence. The company appealed and the court upheld that “it seems clear that the piling of waste material so as to obstruct a natural watercourse, impounding the water behind the obstruction, and allowing the waste pile to burn for a number of years, constituted negligence”. An appellate decision is binding on all the district courts in the jurisdiction of that court of appeal. But the case didn't say the company was reckless, only negligent.
    There is also another argument : the Aberfan disaster which occurred 6 years ( october 21, 1966) before the BCD in Wales. A massive coal-waste refuse pile slid down the mountainside and engulfed and destroyed a school and 18 houses. The Aberfan disaster was shown on TV in the US and both the Charleston Gazette, the Charleston Daily Mail, the NY Times and the Washington Post reported it on their front pages. Time and Life also carried this story in a number of issues. Therefore after this disaster no one in the coal industry could argue that coal-waste refuse piles are not extremely hazardous. And which is more, the Buffalo coal-waste refuse piles were less safe than those of Aberfan. When Mr Davies visited Buffalo Creek in 1966 (the Abrfan disaster had triggered investigations in the US into similar refuse piles) there was only one dam and he said that this dam was stable but “subject to large washout on north side from overflow of lake” (Dam 1 did overflow in 1967). After the BCD Mr Davies was sent to study the reason for the failure of Dam 3 : he concluded that Pittston's conduct was reckless in the construction and maintenance of the dam which caused the BCD. This report formed the basis of Stern's allegations together with a similar report prepared for the Senate hearings on the BCD.
    In the BCD most survivors did not suffer physical injuries but one could feel their severe mental suffering. One of Stern's partners suggested him to contact Dr Lifton, a psychologist who had studied survivors of Hiroshima and survivors of the nazi concentration camps and who had identified a survival syndrome, some kind of survival guilt that the survivors of disasters often feel. But since Stern had not the time to meet Dr Lifton before filing the complaint, he put a claim for “psychic impairment” in his complaint (claiming that each plaintiff parents as well as children could recover damages for it - this increased the number of plaintiffs to approx. 450).
    The problem in evaluating the value of the items lost in the disaster was that most of them had a sentimental value (a picture of your son who died in vietnam, a wedding dress, your family bible…). Eventually Stern came up with a figure : $11 million (the total of real property and personal property losses).
    A dollar value for mental suffering was very hard to estimate. Stern made up a figure : $50.000 for each plaintiff's psychic impairment.
    Finally the claim for punitive damages amounted to $21 million, half of Pittston's net income for the past year. Since Pittston had said in a statement to its stockholders that the Disaster would have no material effect on the company, and since the amount of punitive damages is supposed to be large enough to punish and deter the wrongdoer, Stern alleged that asking for $21 million punitive damages was necessary to ensure that this disaster would have a material effect on Pittston.


Chapter seven : “Flagrant disregard”

    A WV ad hoc commission of inquiry into the Buffalo Creek Flood had just issued its report : “the Pittston company, through its officials, has shown flagrant disregard for the safety of residents of Buffalo Creek and other persons who live near coal-refuse impoundments. This attitude appears to be prevalent throughout much of the coal industry.” The commission called for the convening of a special grand jury to determine wether criminal indictments should be brought against anyone as a result of the BCD. The Grand Jury said that it would return no true bills with regards to criminal charges. In fact, it may have been the special prosecutors who were worried about the corporate veil question who made it possible for Pittston to escape criminal indictment.


Chapter eight : “Mere puff and blow”

    Stern's team and the Pittston lawyers agreed to meet.
    Pittston' move was to dismiss the case on the ground that Pittston was not “a proper party to this action”. Pittston added it didn't own the dam at Buffalo Creek, that was owned by one of his subsidiaries, the BMC and Pittston was merely a stockholder in the BMC. In fact Pittston said it had only purchased the BMC in june 1970 (that is during the construction of dam 3). Pittston pointed out that the BMC was independent. Pittston's brief pointed out that “ a plaintiff seeking to persuade a court to ignore separate corporate entities must show not only an excessive degree of control over the subsidiary, but the purposeful exercise of that improper dominance to commit, behind the shield of corporate limited liability, a fraudulent, illegal, or otherwise wrongful act directly productive of the injury or loss on which the plaintiff sues”.
    Stern's answer to this argument was telling judge Christie that the Pittston documents showed that the BMC was operated as a division of Pittston. Stern quoted Mr Reineke's NY Times statement according to which the responsibility is Pittston's in the long range. Pittston's president even testified that the BMC's vice-president was acting as Pittston's agent. Stern could not argue that Pittston failed to follow the normal corporate formalities in the holding of BMC's chareholders' meetings and directors' meetings. There were minutes for each annual meeting. Stern argued that it would be unjust to require the BMC to pay $52 million that they didn't have. (Pittston lawyers asserted that this claim was “grossly overexaggerated”) And in order to stay longer in court, Stern also said the court should not rule on Pittston's motion until his team had had a chance to depose Pittston's people and learn all the facts (under the federal rules of civil procedure, a court can rule on a preliminary legal question if the facts bearing on that question are admitted or undisputed).
    Judge Christie decided to remove himself from the case because the president of the Pittston company was one of his oldest friends. Stern's team had not found out this element. That was a major mistake. Then there were only two judges left : Judge Knapp and Judge Hall. Judge Knapp was the oldest but he decided he was too busy to work on the case. So judge K.K. Hall was now in charge of it. He had risen from poverty to judgeship and had an understanding of the little people's problems.
    There were three major elements in Stern's request for relief : compensatory damages, punitive damages and injunctive relief. And he hoped that recovery of substantial damages and an injunction would cause Pittston to change its conduct.
    Staker, the Pittston lawyer asserted that the proff of mental suffering requires more than mere puff and blow.


Chapter nine : « Oyez, Oyez, Oyez »

    In an interview, Mr Davies (the geologist who made the US geological survey after the Aberfan disaster) got Mr Camicia (Pittston's president) to admit that the BMC's vice-president was acing as Pittston's agent in this case. Pittston's memo given to judge Hall in order to explain this answer stated that : “these brief answers given by nonlawyers in response to a question formulated by a geologist on a subject not further pursued by him are irrelevant on the existence of agency in the technical, legal sense.
    Judge Hall ruled that Pittston's motion to dismiss the case would be denied for the time being at least until the plaintiffs had been permitted full discovery on all the issues in the case.
    After the discovery had been completed, Judge Hall explained the parties how he wanted the case to be tried. There would be one jury, with numerous alternates, who would hear 4 or 5 sample cases on the question of liability. This jury, assuming it determined that Pittston was liable, would then be dismissed for a short period of time and brought back later to determine the amount of damages for each of these 4 or 5 sample cases.


Cho-K-piC (c)
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