IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
__________
No. 33380
__________
STATE OF WEST VIRGINIA EX REL. CHEMTALL INCORPORATED, CIBA
SPECIALTY CHEMICALS CORPORATION, CYTEC INDUSTRIES, INC., G.E. BETZ,
INC., HYCHEM, INC., ONDEO NALCO COMPANY, STOCKHAUSEN, INC., ZINKAN
ENTERPRISES, INC., JOHN DOE MANUFACTURING AND/OR DISTRIBUTING
COMPANY, JOHN CESLOVNIK, ROBERT MCKINLEY, EULIS DANIELS, JOHN DOE
COMPANY REPRESENTATIVES FOR CHEMTALL INCORPORATED, CIBA
SPECIALTY CHEMICALS CORPORATION, CYTEC INDUSTRIES, INC., G. E. BETZ,
INC., HYCHEM, INC., ONDEO NALCO COMPANY, STOCKHAUSEN, INC., ZINKAN
ENTERPRISES, INC.,
Petitioners
v.
HONORABLE JOHN T. MADDEN, JUDGE OF THE CIRCUIT COURT OF
MARSHALL COUNTY; AND ALL PLAINTIFFS IN
STERN, ET AL. V. CHEMTALL,
INC., ET AL., MARSHALL COUNTY CIVIL ACTION NO. 03-C-49M,
Respondents
______________________________________________________________
Petition for a Writ of Prohibition
WRIT DENIED
____________________________________________________________________
Submitted: September 12, 2007
Filed: November 15, 2007
C. James Zeszutek, Esq.
Dinsmore & Shohl
Pittsburgh, Pennsylvania
and
Denise D. Klug, Esq.
Dinsmore & ShohlWheeling, West Virginia
Attorneys for Nalco Company
Landers P. Bonenberger, Esq.
Jeffrey A. Holmstrand, Esq.
McDermott & Bonenberger
Wheeling, West Virginia
Attorneys for Chemtall, Inc.
Harry G. Shaffer, III, Esq.
Shaffer & Shaffer
Madison, West Virginia
Attorney for CIBA Specialty Chemicals Corp.
Heather Heiskell Jones, Esq.
Andrew P. Arbogast, Esq.
Spilman Thomas & Battle
Charleston, West Virginia
Attorneys for Cytec Industries, Inc.
David K. Hendrickson, Esq.
Hendrickson & Long
Charleston, West Virginia
Attorney for G. E. Betz, Inc.
Joseph W. Selep, Esq.
Zimmer Kunz
Pittsburgh, Pennsylvania
Attorney for Hychem, Inc.
Charles M. Love, III, Esq.
Phyllis M. Porterfield, Esq.
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for Stockhausen, Inc.
Robert P. Martin, Esq.
Justin C. Taylor, Esq.
Bailey & Wyant
Charleston, West Virginia
Attorneys for Zinkan Enterprises, Inc.
R. Dean Hartley, Esq.William E. Parsons, II
J. Zachary Zatezalo
Hartley & O'Brien
Wheeling, West Virginia
and
E. William Harvit, Esq.
Harvit & Schwartz
Charleston, West Virginia
and
Bradley R. Oldaker, Esq.
Baily, Stultz, Oldaker & Green, PLLC
Weston, West Virginia
Attorneys for Plaintiffs
Thomas F. Basile, Esq.
The Calwell Practice
Charleston, West Virginia
and
Scott S. Segal, Esq.
Mark R. Staun, Esq.
The Segal Law Firm
Charleston, West Virginia
and
Theodore Goldberg, Esq.
David B. Rodes, Esq.
Goldberg, Persky & White
Attorneys for the Intervenors
Brenda N. Harper, Esq.
Attorney for Amicus Curiae The West Virginia
Chamber of Commerce
Kenneth S. Geller, Esq.
Andrew L. Frey, Esq.
Scott A. Chesin, Esq.
Mayer, Brown, Rowe & Maw LLP
and
S. Jane Anderson, Esq.
Dickie, McCamey & Chilcote LC
and
Hugh F. Young, Esq.
The Product Liability Advisory Council, Inc.
Attorneys for Amicus Curiae The Product Liability
Advisory Council, Inc.
Mark A. Behrens, Esq.
Cary Silverman, Esq.
Shook, Hardy & Bacon, LLP
Pro Hac Vice
and
Jay M. Potter, Esq.
Francis, Nelson & Brison
Attorneys for Amici Curiae The West Virginia
Roundtable, West Virginia Manufacturers
Association, Chamber of Commerce of the United
States of America, National Association of
Manufacturers, American Chemistry Council
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision
in this case.
JUDGE PRATT, sitting by special assignment.
JUSTICE BENJAMIN concurs in part, dissents in part, and reserves the right to file a
separate opinion.
SYLLABUS
In determining whether to entertain and issue the writ of prohibition for cases
not involving an absence of jurisdiction but only where it is claimed that the lower tribunal
exceeded its legitimate powers, this Court will examine five factors: (1) whether the party
seeking the writ has no other adequate means, such as direct appeal, to obtain the desired
relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter
of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal's order
raises new and important problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be satisfied,
it is clear that the third factor, the existence of clear error as a matter of law, should be given
substantial weight. Syllabus Point 4,
State ex rel. Hoover v. Berger, 199 W.Va. 12, 483
S.E.2d 12 (1996).Per Curiam:
The petitioners and defendants below, suppliers and/or manufacturers of a
chemical known as polyacrylamide, seek extraordinary relief to prevent the enforcement of
two orders of the Circuit Court of Marshall County in an action brought by the respondents
and plaintiffs below, current and former coal preparation plant workers, in which they seek
medical monitoring for diseases they allegedly may develop in the future due to their
exposure to polyacrylamide. For the reasons that follow, we deny the requested relief.
(See footnote 1)
I.
FACTS
The respondents and plaintiffs below are coal preparation plant workers who
allegedly have been exposed to polyacrylamide which is an industrial water cleaner. The
petitioners and defendants below are several corporations who manufactured, distributed,
and/or sold polyacrylamide to coal preparation plants.
(See footnote 2) In their complaint, the respondents
allege a cause of action for strict liability and seek medical monitoring and punitive
damages.
(See footnote 3)
On January 9, 2007, the Circuit Court of Marshall County ordered that
Franklin Stump, Danny Gunnoe, and Teddy Joe Hoosier be allowed to intervene in the
underlying action. We will hereafter refer to this order as the Intervention Order. Also,
by order dated January 9, 2007, the circuit court adopted a trial plan in which the issues of
liability and punitive damages will be bifurcated from medical monitoring and class
certification. Specifically, the circuit court ordered that
[t]he first phase of the trial will involve liability and whether the
Defendants' actions and/or inactions justify punitive damages,
and if so, what multiple of general damages will be assessed as
a punitive damage multiplier as to each Defendant. . . . Should
Plaintiffs prevail on the issue of liability, the parties will
proceed in the second phase to try the issues of medical
causation, medical monitoring viability, and damages.
Finally, even though the circuit court did not certify a class consisting of Pennsylvania and
West Virginia plaintiffs, it concluded, after a lengthy analysis, that the relevant laws of West
Virginia and Pennsylvania are sufficiently compatible so that the claims of plaintiffs from
both states can fairly be adjudicated in West Virginia. We will hereafter refer to this order
as the Trial Plan Order.
The petitioners subsequently filed the instant petition for a writ of prohibition
and/or mandamus with this Court in which they ask us to vacate the Intervention Order to
the extent that it permits Teddy Joe Hoosier to intervene in the underlying action. The
petitioners further request that this Court vacate the Trial Plan Order as it pertains to the
availability and recovery of punitive damages and the compatibility of West Virginia and
Pennsylvania law. On April 19, 2007, this Court granted a rule to show cause why the
requested relief should not be granted. We now deny the relief sought.
II.
STANDARD OF REVIEW
The petition herein is styled as one of Prohibition and/or Mandamus.
Because the petitioners seek to correct a pre-trial order, we will consider the relief sought to
be a writ of prohibition. In
State ex rel. Crafton v. Burnside, 207 W.Va. 74, 78, 528 S.E.2d
768, 772 (2000), we indicated that [t]his Court is empowered to exercise its original
jurisdiction to review the legal propriety of a circuit court's pre-trial orders. This Court has
specifically utilized the remedy of prohibition to correct a court's pre-trial order so that a
unitary trial could occur. (Citation omitted.).
Concerning the standard for granting a writ, we have held:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With
these principles to guide us, we proceed to address the issues raised by the petitioners.
III.
DISCUSSION
1. Intervention Order
In its January 9, 2007, Intervention Order, the circuit court, relying on this
Court's decision in Stern v. Chemtall, Inc., 217 W.Va. 329, 617 S.E.2d 876 (2005), granted
intervener status to Franklin Stump, Danny Gunnoe, and Teddy Joe Hoosier in the
underlying action. The petitioners challenge this order to the extent that it permits the
intervention of Teddy Joe Hoosier.
In Stern, Appellants Stump, Gunnoe, and Hoosier, along with others, appealed
the Circuit Court of Marshall County's January 15, 2004, order that denied their motion to
intervene in the underlying action. Two of the appellants, Stump and Gunnoe, were coal
preparation workers and plaintiffs in a civil action pending at that time in the Circuit Court
of Boone County, styled Denver and Debra Pettry, et al. v. Peabody Holding Co., et al., Case No. 02-C-58, wherein they sought medical monitoring relief against some of the same
defendants involved in the action in the Circuit Court of Marshall County. This Court, in Stern, referred to the litigation in the Circuit Court of Boone County as the Pettry litigation
and the action in the Circuit Court of Marshall County as the Stern litigation. Hoosier was
not a party to the Pettry litigation or any litigation at that time. Rather, he sought to
intervene on behalf of water treatment workers with similar medical monitoring claims as
coal preparation plant workers based on exposure to the same chemical at issue in the
Marshall County action. In Stern, this Court reversed the denial of the motion to interveneand remanded the matter to the Circuit Court of Marshall County for entry of an order
consistent with our opinion. We further ordered that the Pettry litigation be transferred from
the Circuit Court of Boone County to the Circuit Court of Marshall County.
The petitioners now claim that the circuit court erred on remand by permitting
Hoosier, the water treatment worker, to intervene in the underlying action. The petitioners
assert that Stern, by its clear language, mandates only that the Pettry litigants, i.e., Stump
and Gunnoe, be permitted to intervene. In addition, the petitioners aver that the circuit court
exceeded its jurisdiction in permitting the intervention of water treatment workers in an
action originally brought by coal preparation plant workers. According to the petitioners,
the inclusion of water treatment workers will require separate evidence and analyses,
extensive new discovery, and the retention of new experts.
We reject the petitioners' arguments. A careful reading of Stern indicates this
Court's intent to permit Hoosier to intervene in the underlying action. Although it is true
that we repeatedly referred to the interveners in Stern as the Pettry litigants, we did not
thereby exclude Hoosier as an intervener. To the contrary, Hoosier is clearly identified as
one of the appellants who challenged the circuit court's order denying the motion to
intervene. Moreover, this Court reversed the circuit court's order absent any indication
whatsoever that our reversal did not apply to Hoosier. In addition, we believe that there are
facts common to both water treatment and coal preparation plant workers, such as exposure
to the same chemical and the question of risk of contracting the same diseases, which make
intervention proper. (See footnote 4) Finally, we note that the circuit court has not yet indicated how it
intends to manage any differences with regard to these two groups of plaintiffs. Thus, a
ruling by this Court at the present time would be premature. Accordingly, for these reasons,
we deny the writ sought by the petitioners to vacate the circuit court's January 9, 2007,
Intervention Order as it pertains to the intervention of Teddy Joe Hoosier.
2. Trial Plan Order
A. Availability of Punitive Damages
Next, the petitioners challenge the circuit court's ruling regarding both the
availability of punitive damages in cases in which only medical monitoring relief is sought
and the procedure governing the determination of punitive damages. First, the petitioners
assert that the procedure governing the determination of punitive damages is unconstitutional
under the United States Supreme Court's recent decision in Philip Morris USA v. Williams, ___ U.S. ___, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007).
The issue in Philip Morris was whether the Federal Constitution's Due Process
Clause permits a jury to base a punitive damages award in part upon its desire to punish the
defendant for harming persons who are not before the court. The Supreme Court concluded
that such an award would amount to the taking of property from the defendant without due
process. The principle announced by the Court in Philip Morris is that the Constitution's
Due Process Clause forbids a State to use a punitive damages award to punish a defendant
for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury
that it inflicts upon those who are, essentially, strangers to the litigation. Philip Morris, ___
U.S. ___, ___, 127 S.Ct. 1057, 1063. A basis for this rule is that the Due Process Clause
prohibits a State from punishing an individual without first providing that individual with an
opportunity to present every available defense. Id. (Internal quotation marks and citation
omitted.). In other words,
. . . a defendant threatened with punishment for injuring a
nonparty victim has no opportunity to defend against the charge,
by showing, for example in a case such as this, that the other
victim was not entitled to damages because he or she knew that
smoking was dangerous or did not rely upon the defendant's
statements to the contrary.
Id. According to the petitioners, the circuit court's procedure for awarding punitive damages
violates the petitioners' due process rights as set forth in Philip Morris because it requires
a jury to determine punitive damages without taking into account a plaintiff's individualized
harm and prior to a finding of actual liability against any defendant.
We find no merit to the petitioners' contention. Plainly, the circuit court's trial
plan, on its face, is not a clear error of law because it does not guarantee a result at odds with Philip Morris. Significantly, there has not yet been a trial in this case. No evidence has been
adduced, none of the petitioners have been found liable for any tortious conduct, and punitive
damages have not been assessed. Therefore, a decision on the constitutionality of punitive
damages at this point would amount to nothing more than an exercise in speculation.
Therefore, we believe the question of the constitutionality of punitive damages is best
decided in light of a verdict based on a full development of the evidence at trial.
For this same reason, we also decline, at this early pre-trial stage, to address
the petitioners' claim that punitive damages are not available in cases in which only medical
monitoring damages are sought. Again, we are convinced that appellate review of this issue
is better left to the review of a verdict after complete development of all the facts and
testimony and after a trial of all the issues. (See footnote 5) Accordingly, we deny the petitioners' request
to vacate the circuit court's January 9, 2007, Trial Plan Order as it pertains to punitive
damages.
B. Compatibility of West Virginia and Pennsylvania Law
Finally, the petitioners assert that the circuit court erred in formulating a trial
plan that fails to address the material differences in West Virginia and Pennsylvania law. We
disagree. Generally, trial courts have broad discretion in matters of trial management and
procedure.
See Syllabus Point 2,
B.F. Specialty Co. v. Sledd, 197 W.Va. 463, 475 S.E.2d 555
(1996) (Trial Courts have the inherent power to manage their judicial affairs that arise
during proceedings in their courts, which includes the right to manage their trial docket.).
We believe that the circuit court below is fully capable of formulating procedures that
effectively address any differences in West Virginia and Pennsylvania law.
(See footnote 6) Therefore, we
deny the petitioners' request to vacate the circuit court's ruling that plaintiffs in both West
Virginia and Pennsylvania can adjudicate their claims in a West Virginia court.
Prior to concluding, we feel compelled to emphasize and strongly note that the
underlying action was originally filed in March 2003, and has not yet gone to trial. Further,
the instant case is the third time that the parties below have sought the intervention of this
Court in pre-trial matters.
(See footnote 7) We hope the litigants understand and appreciate the difficulty this
Court faces in trying to decide so many issues pre-trial, in the limited context of
extraordinary remedies, and in the absence of a meaningful, fully-developed factual record.
Accordingly, we trust the lawyers and parties will now focus vigorously on letting these
cases be tried by a trial court. Having disposed of the issues raised herein, we are confident
that the parties can now proceed to trial without further delay and without the necessity of
additional guidance from this Court. Finally, we reiterate our statement in
Stern that we
believe that the circuit court is in a better position [than this Court] to manage this litigation
and to protect the interests of [the parties]. The circuit judge should manage the cases and
the issues herein as he deems appropriate.
Stern, 217 W.Va. at 338, 617 S.E.2d at 885.
IV.
CONCLUSION
Having found no clear error as a matter of law in the circuit court's
Intervention Order and Trial Plan Order, we deny the writ of prohibition sought by the
petitioners.
Writ Denied.
Footnote: 1