The first phase of the TVA trial in Tennessee concluded on October 12th. The trial involved five cases consolidated for trial and those five cases include approximately 230 Plaintiffs whose property rights have been affected by the coal ash spill near Kingston, Tenn. The question before the court in this Phase I Trial related only to whether TVA may be held liable for the massive coal ash spill that occurred on December 22, 2008, releasing over 1 billion gallons of coal ash sludge onto 300 acres and into local waterways. As a government corporation, TVA enjoys sovereign immunity for conduct within its discretion. However, in this case, TVA may be held liable if conduct outside of its discretion was the cause of the spill.
In multiple orders leading up to trial, the District Court Judge in the Eastern District of Tennessee denied TVA’s motions for summary judgment and ruled that TVA may be held liable upon showing that TVA violated its own policies and procedures, failed to adequately train personnel, failed to construct the coal ash ponds as designed, and negligently maintained the ash disposal facilities. Each of these items has been ruled as being outside of TVA’s discretionary immunity. Therefore, if the Judge accepts Plaintiffs’ evidence on these items as a cause of the dike failure, TVA may be held liable for the ash spill.
The trial lasted nearly four weeks and the Plaintiffs called a total of eleven live witnesses and presented four witnesses by deposition. Interestingly, of those fifteen witnesses, all but five were TVA employees. Two of the remaining five witnesses were Geosyntec Consulting Inc. engineers who were TVA contractors. The other three were expert witnesses, including one independent dam safety expert who was a member of the Tennessee Department of Environment and Conservation (TDEC) Advisory Board that reviewed the causes of the spill. TVA put on two live witnesses and two witnesses by deposition, including one TVA employee, two engineers from WorleyParsons Corporation (another TVA contractor) and one expert. The majority of Plaintiffs’ case was based on TVA’s own employees and contractors and TVA’s own documents.
Because there is no jury for the coal ash spill litigation, the Judge will decide the case. Unlike a jury trial, the September bench trial concluded without a verdict. At the conclusion of the trial, the Judge instructed the Parties to file post-trial briefing by January 12, 2012. If the Court decides in the Plaintiffs’ favor and finds that TVA’s non-discretionary acts caused the spill, we will then move into Phase II of the trial proceedings. Phase II will involve Plaintiffs’ damages and will answer the question of how much TVA owes the property owners whose property rights have been affected by the ash spill.
A second set of cases had been set for trial beginning November 1st, but the lawyers in those cases stipulated with TVA that evidence presented during our September trial will serve as the evidence in their cases as well. If you need additional information on this case, contact David Byrne or Brantley Fry in our firm at 800-898-2034 or by email at David.Byrne@beasleyallen.com or Brantley.Fry@beasleyallen.com.
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