Rebuilding A Community: The Buffalo Creek Case

Arnold & Porter Article

On February 26, 1972, a huge earthen dam constructed by a coal company without any engineering input collapsed. In a few short minutes, the dam virtually disappeared, and a torrent of water began a 17-mile trip down the narrow Buffalo Creek valley in rural Logan County, West Virginia. Over twenty small coal mining settlements lay between the dam and the mouth of the valley. Those at the upper end of the valley disappeared leaving barely a trace. Those at the lower end of the valley suffered serious flood damage. About 125 people were killed, and hundreds of others were left homeless or with severely damaged homes.

Although most people in the valley had enough warning - barely - to make it to the hillside and thus escape serious physical injury, virtually all suffered the horror of seeing their family homes and possessions wash away in the floodwaters. The effect on the survivors was devastating. What was once a close knit set of communities along the 17-mile valley was essentially destroyed.

Soon after the disaster, the coal company began making offers to settle claims - for immediate but relatively small cash payments relating primarily to property losses. Rather than accept these settlements as complete payment, a group of Buffalo Creek residents decided to approach Arnold & Porter for help. They came to Arnold & Porter because it had recently completed a landmark suit concerning the United Mine Workers pension fund, achieving a settlement and reformation of the fund that was considered a significant victory by West Virginia coal miners, among others.

Arnold & Porter agreed to bring a lawsuit on behalf of those survivors who wished to join in it. The suit would have to break new ground, as it would attempt to address the psychological and communal losses that had been suffered in the disaster, rather than just property losses. About 125 families signed up, including over 600 individuals. Jerry Stern, the partner in charge of pro bono for the firm, headed our trial team.

So that a substantial recovery could be obtained, the suit was brought against Pittston, a major coal company which was the parent of the entity that purportedly owned the dam. A strategic decision was also made to bring the case in federal court in West Virginia rather than in state court. To be able to recover against the parent and to preserve diversity jurisdiction, only Pittston was named, on a piercing the corporate veil theory. This was the first issue addressed - on a motion to dismiss that the defendant filed almost as soon as the complaint itself had been filed.

That motion was defeated. The defendant then sought to challenge other underpinnings of the suit - particularly the claim for psychological injury - by seeking a "more definite statement" of the complaint. We had been able to assemble a group of renowned experts, including famous Harvard psychologists Erik Erikson and Robert Coles; Yale psychiatrist Robert Jay Lifton, known for his work on the "survivor syndrome" (the guilt that survivors of a disaster feel when they realize they have survived while their friends and neighbors have perished); Yale sociologist Kai Erikson; and a team of adult and child psychiatrists from the University of Cincinnati.

Extensive interviews were conducted of the client families in Buffalo Creek at their homes (many of them trailers that had been provided by the government after the disaster). Our clients poured out their hearts in telling their stories, and, with the help of the psychiatrists, psychologists, and sociologists, and telling quotes from diaries, letters, and other materials, we prepared as a "more definite statement" a detailed and personal story of the disaster. Unlike a traditional pleading, the statement was in narrative form and vividly described our clients' plights.

The defendant then embarked upon an extensive program of discovery. Because of the defendant's exhaustive discovery as well as our own efforts, the Buffalo Creek case was one in which virtually every discovery mechanism of the Federal Rules was used: oral depositions (nearly 600 - of each plaintiff over the age of six as well as other witnesses), depositions on written interrogatories, written interrogatories under Rule 33, document requests, property inspections, physical asset inspections, medical examinations (each of the 600 plaintiffs was examined both by defendant's physician as well as by our team of psychiatrists), even letters rogatory (to the National Coal Board in England with respect to the events surrounding the similar disaster in Aberfan, Wales, a few years before). Many of us, lawyers and paralegals alike, spent months in West Virginia, shepherding our clients through depositions, interrogatory answering, document collecting, medical examinations, and the like.

With the completion of the discovery program, the defendant filed a long-expected summary judgment motion, arguing that since most of the plaintiffs had suffered no physical injury - no "touching" from the flood waters - they could not, under the West Virginia law, claim damages for psychological suffering. We defeated this motion too, setting the ground work for recognition of the kind of emotional distress that the people of Buffalo Creek had suffered.

The case came very close to trial. Indeed, we were perhaps one of the earliest legal teams to use in a civil case jury experts to learn how a Charleston, West Virginia, jury would likely respond to the plaintiffs' claims. We were, however, able to settle. About two years after the disaster, we obtained a cash settlement of $13.5 million - the equivalent of perhaps $25 - $30 million in today's terms. About $2 million of that went into a trust fund for the plaintiffs who were then under the age of 18. The last portion was paid out to the youngest just a few years ago. Most of the balance was distributed to the adult plaintiffs, in part for property losses but most substantially for what we had all come to call "psychic impairment."

As part of its pro bono program, Arnold & Porter undertook the case on a contingent basis. Our lawyers and paralegals put in more than 43,000 hours on the case - a very substantial commitment for any firm but particularly for a firm a good bit smaller than we are now. Under the contingency arrangement, we also shared in the settlement. The firm chose to take from its share about $500,000 (the equivalent of perhaps $1 million in today's terms) to create a foundation to help the Buffalo Valley community recreate itself. Over the course of several years, that fund was used to help build a community center in the village that was being reconstructed nearest the dam, to build and equip the first fire station in the valley, to help fund the erection of a health clinic in the valley, and for other matters.

The case also spawned two books. One, The Buffalo Creek Disaster, about the case itself, was by Jerry Stern. Although a book for laymen, it is still used in many law school civil procedure courses. The other, a runner-up for a National Book Award in 1975, is Everything In Its Path, by Kai Erikson describing the story of the disaster from a sociologist's point of view. The psychiatrists from the University of Cincinnati have also published papers on the effects of such disasters on individuals - particularly children - and have continued follow up studies in the valley over the years.

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