Judge appoints interim class counsel in Wayne water case

CHARLESTON – A Kanawha Circuit Court judge has entered an order appointing interim class action counsel in litigation over the Town of Wayne’s recent three-week water crisis.

In an order issued February 10, Kanawha Circuit Judge Richard Lindsay granted the plaintiffs’ motion for appointment of interim counsel to Dante diTrapano and Alex McLaughlin of Calwell Luce diTrapano in Charleston, Jesse Forbes of Forbes Law Offices in Charleston and Anthony Majestro of Powell & Majestro.

Last week, those attorneys filed a class action in Kanawha Circuit Court on behalf of plaintiffs Jennifer Adkins, Glenna Maynard and Tonia White. The defendants are American Electric Power doing business as Appalachian Power as well as the Town of Wayne. The complaint says the plaintiffs seek to recover damages for lost use of water following the January 16 contamination of Twelvepole Creek in Wayne County allegedly caused by vandalism at an AEP substation at a closed East Lynn coal mine.

“The importance of us being named interim class counsel cannot be understated,” diTrapano told The West Virginia Record. “These cases demand leadership that only comes from the extensive experience all three of our firms enjoy.

“We have experts heading to Wayne County tomorrow, so it’s important that there’s a unified front gathering the evidence needed to prove our case and compensate the class members we have been put in charge of representing.”

In his order, Linsday says he is aware of no other cases filed regarding the issue. He also says court rules allow him to “designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.”

Lindsay says the attorneys satisfy the four factors for appointment. Those are:

·       Work done in identifying or investigating potential claims in the action;

·       Experience in handling class actions, other complex litigation and the types of claims asserted in the action;

·       Knowledge of the applicable law; and

·       Resources they will commit to representing the class.

Linsday did say the attorneys’ experience in water loss class actions and other single-event, mass disaster class actions is “extraordinary and probably unrivaled in the instant context, at least in this state.”

“The applicants’ experience in large, complex cases is also impressive, and speaks clearly to their ability and willingness to commit the resources needed to prosecute the instant case as a class action,” Lindsay wrote.

Wayne Mayor Danny Grace removed the three-week Do Not Consume order on February 6.

The potential class includes all residents and businesses served by the Wayne water and sewer service.

Majestro and diTrapano’s firms both were class counsel in the 2014 litigation following a chemical spill in Charleston left more than 300,000 residents without water. Forbes also represented parties in that litigation.

Also, diTrapano and Forbes served as class counsel in a 2017 case related to a large water main break in western Kanawha County affecting tens of thousands of residents and businesses. All three firms also are litigating a class action related to water and gas outages in Charleston’s West Side in November 2023.

The plaintiffs in the are being represented by Majestro and Graham B. Platz of Powell & Majestro, by diTrapano, McLaughlin and Dave Carriger of Calwell Luce diTrapano and by Forbes and Jennifer N. Taylor of Forbes Law Offices.

At least two Huntington law firms also have said they are working on filing class actions about the issue as well.

Paul Biser with Fredeking & Biser said his firm still is gathering information for their case.

“We were at the town meeting last night in Wayne, and we’re getting more and more phone calls every day from customers,” Biser told The Record. “The town says they’re going to start testing people’s waters at their homes, and we are encouraging people to have that done.

“The officials are saying the water is safe, but people say they still are smelling stuff and are very leery about it.”

Kanawha Circuit Court case number 26-C-168