Freedom Industries and West Virginia American Water Company are in the news for all the wrong reasons after an unknown amount of 4-methylcyclohexane methanol (MCHM) leaked from Freedom's Kanawha County facility on January 9, 2014. Literally hundreds of thousands of residents and businesses remain without water to drink, shower, cook or use for anything other than their toilets. The situation is improving but could last for several more days.
This event is unprecedented in my lifetime. I've never seen so many people asking legal questions in my community, which isn't surprising since literally everyone who lives here has been affected. I always do my best to honestly communicate with my clients and potential clients. To that end, most of the blog entries on my website are professionally written and hopefully (but not always) relevant to local events. I'm just too busy working on my cases to write every blog entry on my website so I pay someone to do that for me. Many lawyers do the same.
I am writing this entry myself because the stakes are too high for too many people. I don't fully trust this piece to someone I don't know and who doesn't even live in WV. The focus of this entry is twofold: 1. do you have a claim and 2. should you hire a lawyer? I want to say up front that lawsuits are not the first thing many of us should be thinking of. Hospitals can't fully treat patients, kids can't go to school, restaurants can't serve food, etc. Priority one is restoring the water supply. That said, I'm a lawyer and this is a legal blog. You're not on my page for advice on school closings so here we go:
1. Do you have a claim - This isn't an exclusive list of potential claims but I'll give you some examples. If your water service was interrupted then you almost certainly have a claim. If you own a business that had to shut down then you may have damages from lost revenue, loss of inventory (i.e. - a restaurant that had to dispose of food supplies), etc. If you're a hotel that had to turn away customers you have a claim. If you're an employee of one of those businesses who lost wages due to the shutdown then you have a claim. If your damages start and end at interruption of your home water supply (like is generally the case for my family) then, sure, you have a claim, too. But it's probably not worth much. What's the value of several days (maybe a week, who knows as of now) without tap water? There is some value but any time my clients have what we may call a "first world problem" I tell them their time and energy are better spent on something other than a lawsuit. I turn away far more cases than I accept (most lawyers do) and sometimes a lawsuit just isn't the answer, even if you have a valid claim.
If you are worried about getting sick some lawyers may seek "medical monitoring" damages. This type of case exists to provide proactive medical reviews of claimants who have been exposed to a harmful chemical. I can tell you that if a tanker truck crashed into my house and exposed my children to a known carcinogen I'd much prefer that they receive regular medical reviews, at the tanker company's expense, rather than treatment for cancer only after it has been diagnosed. That is only fair. Whether there is truly a need for medical monitoring in these water cases I have no idea. Fortunately the chemical at issue does not appear highly dangerous but I'm not a toxicologist so my opinion isn't worth much in that arena as I type this. Whatever the nature of your damages the real "value" in these cases appears to be in the form of a class action.
You've probably seen that phrase thrown around a lot the past few days. Class actions are often debated. They can serve a very useful purpose. If a company is knowingly charging each of its customers only $10.00 more than it should for a product (such as if you are billed for an add-on service from your mobile phone provider that you never ordered) then each customer has little in the way of damages. However, if the company has thousands of customers then it can wrongfully make millions of dollars in illegal profits. The only true way to recover that money in a meaningful manner is through a class action. No lawyer would represent someone over $10.00 but representing thousands of people can result in a large enough recovery to justify the case. The counter-argument always is that each customer may wind up walking away with a relatively small recovery (maybe a percentage of the $10.00 they lost in this example) while the lawyers make substantial fees by representing thousands of people at once.
My personal view is that I'll always side with returning the illegal gains to the customers, even at a potentially reduced rate, along with payment to the lawyers if the court agrees their work is justified (the lawyer fees have to be laid out to the court, which must agree they are deserved, so this isn't a situation where the lawyer just gets whatever they ask for). Companies know the risk of class action recoveries and they serve as a deterrent to prevent bad behavior. Most companies, like most people, do the right thing. For those that don't a class action can provide relief from wrongful conduct. I am going to generalize and say what you're seeing in some of these water cases is lawyers searching for as large of a "class" as possible. The more clients the greater the potential recovery.
There are other reasons, too. The lawyers with the most clients may very well wind up "steering" the litigation and making important strategic decisions that other lawyers, who aren't "steering," must live with. So do you have a claim? If you lost water service the answer is almost definitely yes. If you were exposed to this chemical the answer is vague, in my opinion. However, some lawyers may sign you up so long as you were somehow affected, even if minimally, to build their class. They will sort out your claim later and you may wind up with very little. Or, a class action firm may obtain a substantial recovery for you. It's just too early to tell. Let's move on:
2. Should you hire a lawyer - The answer really may depend upon your expectations. If you were one of the original plaintiffs in a class action you may get additional funds if you wind up as a class representative. Otherwise, if you sign up now as a class member in a case that has already been filed then you may (I'm saying "may," it's too early to predict recoveries) wind up receiving less than your actual losses by the time the entire class is paid. If you want to sign up as part of a medical monitoring class then it is difficult if not impossible to know if you will get any relief at all.
Keep something very important in mind - at this stage you do not have to hire a lawyer who only wants to represent you in a class action. If you are a business that lost thousands of dollars in revenue there should be any number of local, reputable lawyers who will represent your interests alone without lumping you in with thousands of other people. However, if your only claim is for money caused by the aggravation of being without water (and I have three little kids so I know it can be aggravating) then you'll probably have no choice but to join a class. I'd personally never file a lawsuit for one person who lost residential water service for a week or less assuming it didn't cause them some other extraordinary harm. Joining with a large number of other such people in a class action probably won't get you much, but may get you something. You may also think the principle of filing a claim in what appears to be in this egregious case is worth more than money. If so then that's your prerogative.
I will say if you want personal, individualized attention, and you have a significant claim, a class action may not be for you. I once spoke with a very, very successful lawyer in Washington, D.C. who has represented thousands of women injured by defective pharmaceuticals. He dislikes class actions and only represents each woman on her own merit. I'm not saying he's 100% correct in that view but I tend to favor his opinion. If you have a good stand-alone claim I think you should expect individual vs. class representation.
With those two issues out of the way I want to add a few final thoughts. First, I have no criticism of lawyers who quickly filed class actions if their intentions were legitimate. They may be seeking to steer the class. Maybe they are worried Freedom will declare bankruptcy and think they will receive some priority creditor status (that's a whole 'nother ball of wax), etc. Please keep some things in mind in this or any other potential case: no lawyer can guarantee you an outcome and if you don't know them no lawyer should ever, and I mean EVER, contact you before you contact them. If a lawyer promises they will get you a certain amount of money then run from that lawyer. They are lying and you cannot trust them. At this point we don't even know who all the culpable parties may be and if those responsible even have the ability to pay for the extraordinary harm they may have caused.
If you have been directly solicited by a lawyer then PLEASE report them to the West Virginia Office of Disciplinary Counsel (www.wvodc.org).* Direct solicitation (not a TV ad, for example, but a personal visit or phone call) is against the rules. This is also true if someone such as a private investigator or firm employee is doing the soliciting for the lawyer. I have had people tell me they were called or visited by multiple lawyers in past major events such as the Sissonville, WV natural gas explosion. I urged them to report those lawyers. I doubt they ever did. The only way lawyers will stop this unethical conduct is if the public reports them. I think lawyers who do this are in the small minority but even one is too many. Any lawyer who contacts and asks you to hire them (or has someone do so on their behalf) is untrustworthy today, tomorrow and the next day. You should want nothing to do with them.
If you do hire a lawyer first ask them some important questions. How much do they charge? Do they have experience in these cases? Are they going to handle the cases themselves or refer them to someone else? This can be vital and is often unknown to clients at the outset. Some lawyers do nothing more than sign up as many people as they can then refer them to large, often out-of-state firms. These out-of-state firms may increase your costs such as through travel expenses or increased overhead if they are in large cities. I believe there are very good, very competent local firms you should consider first who may ultimately cost you less in the long run. This may be the only time you ever hire a lawyer. Choose wisely. I am not soliciting any business directly through this blog. None of this advice makes me your lawyer. If you talk to another lawyer and have questions about what I wrote then they should be willing to discuss it with you. Your first consultation with any lawyer in this circumstance should be free. Everyone stay safe and our prayers are with everyone affected. Thank God it wasn't worse.
*On January 13, 2014 I edited this blog to list the WV Office of Disciplinary Counsel (WVODC) contact information instead of the West Virginia State Bar, which I originally listed. My initial thought was the State Bar will make the appropriate referral but to save time, if you have one, your call or email really should go directly to WVODC.