The West Virginia Supreme will decide if Mingo Circuit Judge Michael Thornsbury will preside over a multi-million dollar lawsuit in which his impartiality has been questioned.

The case involves more than 600 plaintiffs who claim that Rawl Sales, a Massey Energy subsidiary, caused major health issues for Rawl residents by pumping coal slurry into the ground, which eventually contaminated well water in the area.

Questions have been raised as to Thornsbury’s relationship with Massey CEO Don Blankenship, his appointment of a trustee and administrator for the medical monitoring program Massey has been ordered to maintain. The amount to be paid to the trustee of the medical monitoring program has also been challenged.

The purpose of the program is to keep all parties involved apprised of the health of the plaintiffs in the case. There will be a trustee to oversee the program, such as a bank or insurance company, as well as a person to serve as administrator, both of which will be appointed by the court.

Attorneys for the plaintiffs in the Rawl case have filed motions to have Thornsbury recuse himself from the case or to be removed.

Robin Davis, acting chief justice of the Supreme Court, determined the allegations of Thornsbury’s relationship with Blankenship and the appointment of his former campaign manager as the administrator of the medical monitoring, both of which Thornsbury has denied, did not warrant further scrutiny.

However, Davis did ask Thornsbury to conduct a hearing addressing the issues surrounding Community Trust Bank being the trustee of the medical monitoring program and the amount of the fee awarded to the trustee and the administrator. Davis ordered the record of that hearing, which took place Tuesday morning, be submitted to the Supreme Court.

“The court’s position has been consistent,” Thornsbury said. “Prior to a hearing on June 17, this court did not have any communication whatsoever with Community Trust Bank (CTB). The court did not have any communication with CTB on or after June 17. The court has not discussed any fee with them, no notice of appointment in any capacity.”

Thornsbury said the reasoning for adopting the recommendation of CTB was that the bank has trust capabilities, experience a good reputation.

“In regard to the trustee fees that were raised in the motion, frankly I don’t have any earthly idea,” Thornsbury said. He said he has not taken part in any discussion about fees to be paid to the trustee of the program.

“There is no final decision regarding that [fees] as we speak,” the judge said.

As to appointing CTB as trustee, attorneys for Massey say they had no intention of keeping anyone involved in the case in the dark as to the appointment.

“Plaintiffs' counsel knew what was going on, they knew we were in the process of doing this, ”the attorney said. “They did not have any objections, they had no suggestions, they had no proposal of their own. We were the ones preparing a proposal.”

The attorney said he found a bank he thought would be suitable to be the trustee.

“I took it upon myself to find somebody who would do it,” he said. “I didn't talk to the bank, I didn't have any conversation with anyone at the bank. It's a local bank, we thought the money would be better served by a local bank.”

As to the matter of the amount of fees to be paid to the trustee of the program, attorneys for Massey said they had not considered the fees.

“The only thing about fees we had ever heard . . . was that the usual fee for this kind of service was 1.4 to 1.5 percent of the trust.”

“Attorneys for the plaintiffs' filed this motion to disqualify based on speculation on their part, not based upon facts. It was my hope to keep this thing local, to have a local trustee.”

Plaintiffs' attorney said they did have concerns as to the trustee, but were unable to speak to Massey's lawyers about the issue.

“Ever since we struck this deal, we have periodically emailed and called [Massey's attorneys] to ask where these documents were, to say we wanted to be involved in this process,” plaintiffs' counsel said, but that they received no reply.

Dwayne Thompson, market president for the Tug Valley branch of Community Trust, spoke about the appointment of the bank as trustee. He said he was unaware of any contact between the court and the bank about the matter. He also said CTB has trust services in Lexington, Ky., not locally. He said he did not know the schedule for how much the bank charges to be the overseer of a trust.

He also testified that CTB provides brokerage services, such as 401k accounts and the sell of stocks as well as trust services. Thompson said he did not know the fees associated with brokerage either. He did say that money from a trust may be invested by the brokerage service of the bank.

“In that case,” plaintiffs' lawyers asked, “would the bank receive two different fees, for the trust as well as the brokerage service?”

“Sure,” Thompson said.

He also said that, to his knowledge, CTB is not currently the trustee of any medical monitoring program, nor with any Massey companies. He said that although the CTB is the bank for the Mingo County Sheriff's Department, the Circuit Court does no business with the bank, to his knowledge. He said CTB does hold a deed of trust to Judge Thornsbury, which had previously been noted.

“If the concern is bank accounts, or fiduciary relationships or deeds of trust, which federal banking laws clearly govern, I would dare say a fair number of the the plaintiffs have checking accounts, savings accounts, certificates of deposit, deeds of trust, [with CTB],” Thornsbury said.

The record of the hearing will now go to the West Virginia Supreme Court for consideration.