Scott S. Segal, Esq. Harold S. Albertson, Esq.
Scott E. Johnson, Esq. Albertson & Jones
The Segal Law Firm Charleston, West Virginia
Charleston, West Virginia Attorney for Linatex Corporation
Gary S. Wigal, Esq. of America
Gianola, Barnum & Wigal
Morgantown, West Virginia L. John Argento, Esq.
Attorneys for Petitioners Dickie, McCamey & Chilcote
Attorney for Lewis-Goetz and
Company, Inc. dba Gooding
Eric K. Falk, Esq.
Davies, McFarland & Carroll, Inc.
Attorney for ITW Devcon and
Goodyear Tire & Rubber Company
Michael M. Fisher, Esq.
Offutt, Fisher & Nord
Huntington, West Virginia
Attorney for Scandura
M. Shane Harvey, Esq.
Jackson & Kelly
Charleston, West Virginia
Attorney for Elkay Mining Co.,
Island Creek Corporation,
Beth Energy Mines, Inc., and
Timothy M. Miller, Esq.
Christopher B. Power, Esq.
Robinson & McElwee
Charleston, West Virginia
Attorneys for Eastern Associated
Richard L. Lancianese, Esq.
Baker, Lancianese & Smith
Huntington, West Virginia
Attorney for Quality Belt Vulcanizers, Inc.
Anita R. Casey, Esq.
Cynthia A. Majestro, Esq.
MacCorkle, Lavender & Casey
Charleston, West Virginia
Attorney for Patch Rubber Co.
Glenn Murphy, Esq.
Heather M. Wright, Esq.
McQueen, Harmon & Potter
Charleston, West Virginia
Attorneys for Pang Rubber Company
Kenneth Willman, Esq.
Concetta A. Silvaggio, Esq.
Willman & Arnold
Attorneys for Belt Service, Inc. and
C & E Mine Belt Service, Inc.
JUSTICE STARCHER delivered the Opinion of the Court.
HON. THOMAS B. MILLER, sitting by special assignment.
JUSTICE SCOTT dissents and reserves the right to file a dissenting opinion.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision of the Court.
In this case we hold that the circuit court should allow the plaintiffs to
withdraw their consent to a bifurcated trial procedure to which their initial counsel had
5. These cases shall be tried in a reverse bifurcated manner.
[See footnote 1
] Specifically, the issues to be tried [in phase one of the trial]
(a) Whether each plaintiff worked with and inhaled, ingested or was otherwise exposed to chemical fumes emitted from the defendants' products and utilized in their workplaces;
(b) If so, the identity of the chemicals that are implicated under plaintiffs' causation theories;
(c) Whether each plaintiff has suffered from a compensable disease process caused by the specific chemicals to which exposure is alleged;
(d) If so, what are each plaintiff's com- pensatory damages?
6. The issues of liability, namely Mandolidis violations of the employer defendants, the liability of the coal mining companies, and the alleged negligence, breach of warranties, liability under Morningstar v. Black & Decker, and liability for abnormally dangerous activities of the manufacturer/supplier defendants, along with the issue of punitive damages as to all defendants, will be severed and tried at a later date.
Other portions of the circuit court's case management order permitted discovery on liability issues, and did not preclude the defendants from seeking adjudication
of liability issues by summary judgment, prior to the phase one reverse bifurcation trial
of causation and damages.
Subsequent to the court's entry of the case management order, the plaintiffs obtained additional counsel, who filed a Motion to Reconsider Reverse Bifurcation. Plaintiffs' new counsel filed an affidavit in support of this motion, in which plaintiffs' initial counsel stated that due to his inexperience in toxic tort litigation, he was unaware that his clients would be significantly prejudiced by his consent to the reverse bifurcation trial process.
In their response to the plaintiffs' motion to reconsider, the defendants asserted (1) that reverse bifurcation was appropriate for the trial of the issues in these cases; and (2) that there were no grounds upon which the plaintiffs should be permitted to withdraw their consent to the case management order. However, the defendants did not assert in their response that they had engaged in such pre-trial conduct, based on the bifurcation aspects of the case management order, so that they would be irretrievably prejudiced by revision of the order.See footnote 2 2
The plaintiffs replied to the defendants' response, disputing the defendants' contention that reverse bifurcation was appropriate and proper.
The circuit court, in a memorandum opinion, treated the plaintiffs' motion for
reconsideration as a motion for relief from judgment or order pursuant to Rule 60(b), and
denied the motion. Specifically, the circuit court's memorandum opinion focused on whether
the plaintiffs' motion for reconsideration should be granted on the grounds of (1) excusable
neglect by plaintiffs' initial counsel in consenting to the case management order (Rule
60(b)(1)); or (2) any other reason justifying relief from the operation of the judgment,
The circuit court concluded that the plaintiffs' initial counsel's consent to reverse bifurcation -- even if unwise, based on ignorance, and costly to the plaintiffs' case -- was a matter of trial strategy that could not fall in the category of excusable neglect. The circuit court also concluded that the plaintiffs had not shown that reverse bifurcation was improper or unfairly prejudicial, despite the fact that it might be more financially burdensome on plaintiffs' counsel in financing the cases.
The plaintiffs thereafter filed the instant petition for a writ of prohibition seeking an order from this Court requiring the circuit court to vacate the case management order.
Rule 60(b) by its plain terms applies to a final judgment, order, or
proceeding. (Emphasis added.) As the advisory committee's note to Federal Rules of Civil
Procedure, Rule 60(b) makes clear, . . . interlocutory judgments are not brought within the
restrictions of the rule, but rather they are left subject to the complete power of the court
rendering them to afford such relief from them as justice requires. 11 Charles Alan Wright
et al., Federal Practice and Procedure: Civil 2d § 2852 at 233-34 n.8 (1995). One leading
federal civil procedure treatise explains, Rule 60(b) . . . applies only to 'a final judgment,
order or proceeding.' Thus, the power of a court to modify an interlocutory judgment or
order at any time prior to final judgment remains unchanged and is not limited by the
provisions of Rule 60(b). Id. 8 Moore's Federal Practice § 42.21 states: Orders granting
or denying motions to bifurcate issues or claims for trial are interlocutory orders . . .
[although they may be appealed in some instances].
In the instant case, the plaintiffs' motion for reconsideration should have been viewed as a routine request for reconsideration of an interlocutory . . . decision . . . . Such requests do not necessarily fall within any specific . . . Rule. They rely on 'the inherent power of the rendering . . . court to afford such relief from interlocutory judgments . . . as justice requires.' Greene v. Union Mutual Life Ins. Co. of America, 764 F.2d 19, 22 (1st Cir. 1985) (citation omitted).See footnote 3 3
To the extent that a rule of civil procedure was implicated by the petitioner-
plaintiffs' motion to reconsider, it was Rule 16(e) of the West Virginia Rules of Civil
Procedure, which contemplates that a circuit court may amend a scheduling order throughout
the course of the proceeding.
Rule 16(e) specifically provides that a scheduling order controls litigation unless modified by a subsequent order. The standard for such a modification is by implication lower than that contemplated in amending a final pre-trial order, which should only be done to prevent manifest injustice. Id.
This Court is empowered to exercise its original jurisdiction to review the legal propriety of a circuit court's pre-trial orders. See Gebr. Eickhoff Masch. v. Starcher, 174 W.Va. 618, 328 S.E.2d 492 (1985). This Court has specifically utilized the remedy of prohibition to correct a court's pre-trial order so that a unitary trial could occur. In State ex rel. Tinsman v. Hott, 188 W.Va. 349, 424 S.E.2d 584 (1992), the circuit court's evidentiary pre-trial rulings had in effect bifurcated the claims of the plaintiff, forcing separate proceedings. However, we found that the claims could be tried together without unfair prejudice to the parties, and under this circumstance, our law's strong preference for unitary trials led us to grant the writ, applying an abuse of discretion standard.
In summary, we hold that Rule 60(b) of the West Virginia Rules of Civil Procedure does not apply to a motion to amend or reconsider a pre-trial scheduling or case management order. The circuit court's application of Rule 60(b) to the plaintiffs' motion for reconsideration of the case management order was erroneous. We review the circuit court's decision not to amend the case management order under an abuse of discretion standard.
In light of the foregoing principles, we conclude that the plaintiffs should have
been allowed to withdraw their consent to the reverse bifurcation procedure, and that the
circuit court abused its discretion in failing to allow them to do so. On the limited record
before us, we cannot rule on the issue of whether, absent the consent of the plaintiffs to
reverse bifurcation, the circuit court should adopt that procedure. The issue of possible
reverse bifurcation should be addressed by the circuit court de novo, making any record that
may be necessary, without giving any effect to the plaintiffs' previous stipulation to the
jurisdiction.' Syllabus Point 3, Shields v. Romine, 122 W.Va. 639, 13 S.E.2d 16 (1940).
The inherent power doctrine is well recognized in West Virginia. See, e.g., Daily
Gazette v. Canady, 175 W.Va. 245, 251, 332 S.E.2d 262, 264 (1985). The plaintiffs in the
instant case argued to the circuit court that:
Given the significant constitutional, statutory and public policy implications involved in a bifurcation decision, this Court, as an independent expositor and defender of the law, has the authority, implicit in its duty to see that justice is done, to reassess its bifurcation decision in light of the strong preference that West Virginia places upon a fair trial vis-a-vis bifurcation.
This Court has recognized the desirability of circuit courts revisiting issues of substantial importance when fundamental rights are at stake: We welcome the efforts of trial courts to correct errors they perceive before judgment is entered and while the adverse affects can be mitigated or abrogated. State v. Jarvis, 199 W.Va. 38, 45, 483 S.E.2d 38, 45 (1996).
also J. M. Granholm and William J. Richards, Bifurcated Justice: How Trial-Splitting
Devices Defeat the Jury's Role, 26 U.Toledo L.Rev. 505 (1995).
The record in the instant case reflects that the circuit judge refused to refer the cases to the Mass Litigation Panel, pursuant to Trial Court Rule 26.01(b)(1) , because they were not sufficiently numerous. Many of the factors that have been suggested as supporting a reverse bifurcated trial procedure, such as clearly established liability that would make a second phase of the trial unlikely, demonstrated absence of prejudice to the plaintiffs, lack of duplicative witnesses, and a great number of plaintiffs or defendants -- are not present in the instant case.