Nine men who survived West Virginia's Upper Big Branch mine disaster want to abandon mediation of their personal injury claims and start gathering evidence for trial because they say the mine's new owner isn't negotiating in good faith.
The miners also suggest one reason Virginia-based Alpha Natural Resources is sealing the former Massey Energy mine where 29 men died is to prevent that collection of evidence, according to a motion to lift a stay that's been in place since last September.
The plaintiffs said they've been forced to rely on government and independent reports on the worst U.S. mining disaster in four decades.
Alpha, which acquired Massey and the mine near Montcoal in a $7.1 billion deal last summer, declined to discuss the mediations, saying they're confidential by court order.
"Alpha intends to respect the court's authority and directives," said spokesman Ted Pile.
In January, attorneys for the families of the 29 killed announced they'd settled their wrongful death lawsuits with Alpha. The terms were not disclosed, but the plaintiffs contend Alpha's stock price rose significantly after the announcement, buoyed by the positive headlines.
"What was not announced was the fact that the serious claims of those miners that survived the explosive blasts that day remained unsettled," said the motion that was filed last week in Boone County Circuit Court.
The nine plaintiffs said they've suffered serious, permanent and debilitating physical and psychological injuries as a result of the April 2010 blast, including traumatic brain injuries.
Pile said Alpha has always said it hopes to "settle all outstanding claims related to the Upper Big Branch accident so everyone can move forward."
"It was important to first take care of the families of those miners whose lives were lost in this tragic accident," he said.
Alpha said in January that it also settled lawsuits with at least seven injured survivors when it settled the death cases. Attorney Michelle Parfitt said some of her clients were in the same shuttle car and experienced the same explosive forces as those who died and those who have settled.
Some helped drag their fallen friends out of the mine, administered CPR in vain attempts to save them and suffer from survivor's guilt, among other things.
"They're in the worst of ways. They can't move forward. They can't get resolution of their claims," she said.
Parfitt said plaintiff Ryan Powers, who is in his late 20s, has tried three times to go back underground but is neither physically nor psychologically capable. While some miners have returned to work, she said Powers' doctors have told him he would present a danger to himself and others if he tried.
The other plaintiffs are Jason Stanley, Scott Halstead, Kenneth Woodrum, Kevin Brown, Tommy Estep, Dustin Ross, David Shears and Dakota Davis.
They were one of three groups of lawsuits that were to be mediated separately. But the motion to start evidence gathering says Alpha has repeatedly sought delays, tried to stop liability experts from assisting them and tried to prevent access to "crucial evidence under the guise of mine safety" by announcing last week it would seal the mine.
"We are sealing the mine because the two years in which it has remained open have allowed for the completion of all outside investigations," Pile said, "and we never had any intention of operating that mine again."
A motion the plaintiffs filed to prevent the sealing was denied.
Parfitt said the plaintiffs worry Massey may have evidence that was not included in one of the reports. While she credited the thoroughness of the accident reports, she said, "it forces us to rely on someone else's evidence."
Separate investigations by the Mine Safety and Health Administration, the United Mine Workers of America and an independent panel appointed by former Gov. Joe Manchin have all agreed on what happened.
They determined that Massey allowed highly explosive methane gas and coal dust to accumulate at Upper Big Branch, and that worn and broken cutting equipment created the spark that ignited the fuel. Broken and clogged water sprayers allowed a mere flare-up to turn into an inferno that ripped through miles of underground tunnels and killed men instantly.
In its final report, MSHA said the root cause of the explosion was Massey's "systematic, intentional and aggressive efforts" to conceal life-threatening problems.
In December, Alpha reached a $210 million settlement with the U.S. Department of Justice that spared the corporation criminal prosecution and wiped the slate clean of violations at Upper Big Branch and other former Massey mines. Individuals, however, can still be prosecuted.
Former security chief Hughie Elbert Stover is appealing his conviction for lying to investigators and ordering subordinates to destroy documents. Former superintendent Gary May, meanwhile, is cooperating in a continuing federal investigation as he awaits sentencing for his role at the mine.
May, who pleaded guilty to a charge of conspiracy to defraud the federal government, is the highest-ranking mine official yet to be charged in the blast.
Parfitt said her clients wanted to settle their claims but no longer have faith in mediation. Nor have they been treated with dignity, she said.
The miners say they have attended a half-dozen sessions, "often on less than 24 hours' notice, only to be asked mundane and seemingly irrelevant questions about legal theories that could have been asked in a simple email or phone call."
Alpha attorneys have also called them "bystanders," she said, even though many were inside the mine when it blew up.
"That kind of lack of good faith is what's been very, very difficult for these men to understand _ and as their attorney, very, very difficult for me to explain," Parfitt said. "These people weren't bystanders."