Mingo County Circuit Judge Michael Thornsbury has been ordered by the state Supreme Court to step down from hearing a lawsuit against Massey Energy over alleged pollution of drinking water by the injection of the company’s coal slurry.
In an order signed Monday, Acting Chief Justice Robin Davis cited Thornsbury’s previous representation of a Massey company in a case brought by a resident (who is also a plaintiff in the slurry case) over blasting at one of Massey’s mines.
Lawyers for Mingo County residents who are suing Massey raised this issue in a supplemental motion asking Thornsbury to rescuse himself, after the judge initially refused to step down over alleged conflicts of interest in the case.
The second recusal motion, filed by attorney Kevin Thompson, explained that Judge Thornsbury had defended Massey’s Rawl Sales subsidiary against a case brought by Raymond Fitch (who is also a plaintiff in the slurry case). Fitch and a dozen other residents sued Rawl Sales over blasting damage allegedly caused by “massive explosions detonated by an unlicensed blaster” employed by Rawl Sales, according to court records.
Thompson argued that the blasting in question was especially relevant to the slurry case, because one of the plaintiffs’ experts, Marshall University scientist Scott Simonton, identified blasting as one of the potential causes for coal slurry injected underground migrating into drinking water supplies.
In her order, Justice Davis wrote:
… The issues raised in the supplemental motion relate to prior representation by the presiding judge of one of the defendants in the present litigation brought by one of the plaintiffs in both the current and prior litigation.
According to the expert witness report attached to the supplemental motion, and summaries of expert witness testimony included in a prior order of the lower court in these proceedings, the effects of blasting activities on subsurface strata during time periods relevant to both proceedings are matters directly in issue in the current litigation; and
… Given the temporal and geographic relationship between the prior matter and the allegations and defenses in the current litigation, Canon 3E(1) provides that a judge shall be disqualified in a proceeding in which the judge’s impartiality might reasonably be questioned, and Canon 2, which requires that the judiciary shall seek to avoid even an appearance of impropriety, are both applicable.
Davis named Jackson County Circuit Judge Thomas C. Evans to hear the slurry case in Thornsbury’s place.