Ash spill plaintiffs want mediation

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By Damon Lawrence

As directed, the parties in the TVA ash spill litigation have filed documents with the federal court in Knoxville on how they think the second phase of the trial should proceed.

TVA is liable for damages to the plaintiffs, provided each one can show they are entitled to relief under claims of negligence, trespass or private nuisance. That determination will be made in a second phase of the trial.

Plaintiffs, however, want U.S. District Judge Thomas Varlan to first order the parties to participate in mediation.

“These cases are suitable for consolidated mediation, because of the court’s determination of TVA’s liability, which has been applied to all of the cases, because of the similarity of the damages claims among these plaintiffs, and because of the time and resources it would take to try individual causation and damages issues in all of the cases,” plaintiffs contend.  

The plaintiffs want the judge to order TVA to bring to mediation two representatives with settlement authority, including one member of the agency’s board of directors who has the consent of the board to settle cases.

According to the plaintiffs, the cases are suitable for mediation for three reasons: “1, the court has determined TVA’s liability, removing one of the major issues in the case,” they said. “2, the damages claims among these plaintiffs are similar and are subject to development of an agreed-upon methodology for fair compensation which could resolve all of these cases; and 3, the time and expenses savings for the court and the parties if mediation is successful would be enormous, with trials for all of the plaintiffs potentially taking several months.”
TVA opposes mediation.

“Plaintiffs’ motion should be denied on the ground that mediation is premature,” the agency said.

Hundreds of people have sued TVA over the ash spill that occurred at the Kingston Fossil Plant on Dec. 22, 2008.
The disaster released more than 5 million cubic yards of fly ash into the environment.

It’s regarded as one of the worst environmental disasters of its kind in history, according to the U.S. Environmental Protection Agency.  

Evidence was heard during a 16-day trial last year. Varlan announced his decision on Aug. 23.  

“The parties are directed, within 21 days of the entry of this memorandum opinion and order, to file briefs of no more than 20 pages regarding the parties’ recommendations for how this court should conduct the Phase II proceedings,” Varlan wrote in his order.

TVA wants the court to focus on a group called the Chesney plaintiffs in the second phase of the trial.

“All proceedings in the other pending cases should be stayed until completion of the Chesney Phase II trial,” TVA said.

According to TVA, focusing on the Chesney plaintiffs is beneficial to the court and all the parties involved.

“Because the case encompasses virtually all outstanding legal questions in the ash spill litigation and thus will provide a template for future proceedings,” TVA said.

“This approach promotes judicial efficiency and economy, takes into account interests of finality, and best uses the parties’ and the court’s resources.”

The plaintiffs called TVA’s recommendation “patently unfair.”

“Plaintiffs have the burden of proof and should be permitted to determine how that proof is entered into the record and in what order,” the filing said.   

Varlan has yet to issue an order on how the second phase of the trial will proceed.