Fourth Circuit Pressed to Allow Mining Death Claim to Proceed

RICHMOND (CN) – Fifty years after their family members were killed in a West Virginia mining disaster, descendants of the 78 left dead pressed the Fourth Circuit Wednesday to allow them to hold the mine owner responsible.

On the morning of November 20, 1968, an explosion ripped through the Consol No. 9 coal mine north of Mannington, West Virginia, trapping 99 miners.

Several of the miners were later able to escape, but 78 remained trapped and they all eventually died. The bodies of 19 of the dead were never recovered.

The actual cause of the disaster was never conclusively proven, but relatives of the dead blame a failed fan system in the mine that they say allowed methane gas to collect and eventually ignite.

The task before the Fourth Circuit Wednesday was to determine whether the statute of limitations has passed for claims the families’ filed in 2014.

Scott Segal, an attorney for the families told the three-judge panel that the plaintiffs have evidence which suggests a mine employee was instructed by the company to ignore problems with the mine’s ventilation system.

Segal said this alleged willful ignorance amounted to concealment and fraud, and justifies the lateness of the filing.

The lawsuit arose from the discovery of a handwritten memo drafted by a mine inspector in 1970. According to the families, the inspector concluded there was evidence that someone had tampered with the fan’s alarm system — but none of them knew of this evidence until 2008.

They further contend that a former mine employee told them in 2014 that it was the mine’s chief electrician who disabled the alarm.

Segal argued Wednesday that all of this information was suppressed at the time of the accident, and in testimony the company’s management and employees later gave to investigators.

“Fraud is concealment,” Segal said. “You have a duty to tell if you know why the mine exploded.”

But the question at hand — whether the statute of limitations had run out on the claims — still appeared to bother the judges, and Henry Jernigan, the attorney for defendant Consolidation Coal Company, argued the clock ran out on the families’ claims in 2010, two years after the inspector memo came to light.

“[Plaintiffs] have said without the name [of those involved in the cover-up] they could not have made the claim,” said Jernigan, who argued the families could have filed their complaint with a John Doe listed as the defendant.

All they needed to do that, Jernigan added, was “duty and injury from that duty.”

But as closing arguments got under way, Segal pleaded with the panel to say the name of the responsible individual was indeed required by law and the lack of timeliness of the filing reflects that.

“To meet the standard, we must show the place, time, as well as identity of the person responsible,” he said. “We have to prove the person doing the act was instructed by the Coal Company. I can’t sue them unless management ordered the act.”

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