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Lawyers face Feb. deadline to pick mediator in coal ash disaster case

A judge is ordering both sides in the case to try to resolve how to compensate sickened clean-up workers by using a mediator.

KNOXVILLE, Tenn. — Lawyers for Kingston coal ash disaster workers and the company they say exposed them to dangerous toxins have about two weeks to offer a plan for picking a mediator to resolve a long-running federal lawsuit.

Chief U.S. District Judge Tom Varlan also is giving the parties until June to actually mediate damages in the case.

In November, a civil jury in U.S. District Court in Knoxville sided with dozens of former employees hired by Jacobs Engineering to help clean up after the 2008 Kingston coal ash disaster.

Jurors found that Jacobs failed to properly look out for the cleanup workers' welfare and may in fact have subjected them to life-threatening health problems such as lung cancer and leukemia.

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Workers testified they became sick from exposure to coal ash and hazardous elements associated with it while out at the spill site. They said, however, Jacobs discouraged their concerns about the coal ash or misled them about what they could face from exposure.

The verdict represented just the first phase of litigation. Now comes the question of deciding what if any compensation the workers should get.

Last month, Varlan held a hearing with lawyers for both sides. He said he wants them to try to use a mediator rather than hold a series of trials.

In an order filed Jan. 18, Varlan set out his reasoning.

 Fundamentally, the judge said, lawyers for Jacobs and the workers can't agree on how to go forward with the second phase, so he can step in and order mediation.

He said mediation likely offers a quicker way to address the workers' needs, including those who may be suffering the most. In general, mediation should turn out to save everyone in terms of time and resources, he noted.

Credit: TVA
Aerial view of the coal ash spill at TVA's Kingston Fossil Plant on Dec. 22, 2008.

Even if it's not successful, mediation won't take up too much time or present too much of a delay, he wrote.

Lawyers for the workers had sought consolidated trials that would group plaintiffs by their health problems. Jacobs' attorneys argued they should examine each individual claim and then choose a representative group to go forward, if necessary, with a trial.

"The court acknowledges that there are drawbacks and benefits as to each proposal but need not choose between them or other alternatives if the parties are able to reach a resolution through mediation," Varlan wrote in his order.

The judge imposed a 30-day deadline from Jan. 18 for the parties to submit a proposal about selecting a mediator. And he gave them 150 days, or five months, to mediate the lawsuit "in good faith."

He tapped U.S. Magistrate Judge Bruce Guyton to oversee the mediation question and referee differences over potential evidence the sides may need from each other.

Credit: WBIR

The clean-up workers are expected to submit a list of which people are suffering from certain health problems tied to fly-ash exposure as well as medical records and providers. They've got 30 days to do that from the Jan. 18 order.

Millions of gallons of coal ash sludge spilled from a collapsed holding dike at TVA's Kingston plant in December 2008. The sludge was the product of burning coal used to power the plant.

TVA was not a defendant in the November trial. It hired Jacobs to handle the clean-up. But in a recent filing with the Securities and Exchange Commission, TVA signaled that it could face liability.

"Depending on the outcome of mediation, the litigation will proceed to the second phase on the question of whether Jacobs’s failures did in fact cause the plaintiffs’ alleged injuries and damages," TVA's note states.

"While TVA is not a party to this litigation, TVA could be contractually obligated to reimburse Jacobs for some amounts that Jacobs is required to pay as a result of this litigation.

"Further, TVA will continue monitoring this litigation to determine whether this or similar cases could have broader implications for the utility industry."

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