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West Virginia Tainted Tap Water Class Included Judge Who OK’d It

Nov. 6, 2019, 8:11 PM

Class status for water utility customers in West Virginia who were allegedly exposed to pollutants in their water supply must be vacated because the judge who certified the class was himself a member of it, the state’s Supreme Court of Appeals ruled.

The judge also didn’t conduct a thorough analysis of the prerequisites for class certification, the high court said Nov. 5.

Three consumers sued Municipal Water Works, of Pineville, W.Va., in the Wyoming County Circuit Court, alleging their water supply contained substances putting them at increased risk of kidney and liver disease, organ failure, and cancer, according to the supreme court. They asserted claims on behalf of a class of Municipal Water customers, including those who had already suffered health effects and those seeking medical monitoring.

Judge Warren R. McGraw, who oversaw the circuit court proceeding, certified the class. Soon afterwards, Municipal Water sought his disqualification, and he recused himself. Then the utility challenged the certification ruling.

“It is undisputed that the circuit court judge who granted the motion certifying the class is a potential class member—Municipal Water supplies water to the circuit court judge’s residence and to the Wyoming County courthouse,” Justice Tim Armstead said for the supreme court.

The high court agreed with Municipal Water that the judge’s impartiality could reasonably be questioned, creating an appearance of impropriety.

The circuit court’s order certifying the class also doesn’t “contain a rigorous analysis” of the numerosity, commonality, typicality, and adequacy requirements, the court said. Instead, it had only a “brief, general analysis,” and must be vacated, the court said.

The case is State ex rel. Mun. Water Works v. Swope, 2019 BL 424204, W. Va., No. 19-0404, 11/5/19.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com