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No. 33380 - State of West Virginia ex rel. Chemtall Incorporated, et al. v.
Honorable John T. Madden
Benjamin, Justice, concurring and dissenting:
For the reasons discussed below, I concur with the majority as to its holding
regarding the circuit court's January 9, 2007, Intervention Order, and dissent as to its holding
pertaining to the circuit court's January 9, 2007, Trial Plan Order.
The majority reached the correct decision in denying the writ sought by
petitioners to vacate the circuit court's January 9, 2007, Intervention Order as it pertains to
Teddy Joe Hoosier. While I am not entirely convinced, as is the majority, that the facts and
legal issues will indeed prove to be common to both water treatment and coal preparation
plant workers, the fact remains that the circuit court has not yet indicated how it intends to
manage any differences with regard to these two groups of plaintiffs, and, to date, no
discovery regarding water treatment workers has been conducted. Before this Court's
intervention becomes necessary, further factual development on this issue is needed to
affirmatively ascertain whether the petitioners will be prejudiced in a way that is not
correctable on appeal. Accordingly, because it is premature at this juncture to grant a writ
regarding this issue, I concur with the majority's decision to deny relief at the present time.
I respectfully dissent from the majority's opinion as to petitioner's challenge
of the circuit court's Trial Plan Order and its rulings regarding the availability of punitive
damages in medical monitoring cases, the procedure governing the determination of punitive
damages, and the compatibility of West Virginia and Pennsylvania law. The petitioners
present important issues of law that are matters of first impression before this Court and the
Trial Plan Order facially serves to prejudice the petitioners in a way that is not correctable
on appeal. Delaying a consideration of the matters raised herein until an eventual appeal
poses a distinct potential for prejudice to the due process rights of the petitioners. (See footnote 1)
believe it is incumbent upon this Court to now entertain and issue the writ of prohibition
regarding these matters.
1) The Circuit Court Committed Clear Error Because The Trial Plan Order,
As It Pertains to Punitive Damages, Violates the Due Process Clause.
The Trial Plan Order, as it pertains to punitive damages, denies the defendants'
due process rights for three pivotal reasons. First, because a class has not yet been certified,
it is unconstitutional to require a procedure for determination of punitive damages and a
punitive damages multiplier in a phase one trial that does not take into account only the harm
to individual plaintiffs and does not determine liability as to any defendant. Second, I
seriously question the constitutionality of permitting a punitive damages claim to proceed in
a medical-monitoring case, where the plaintiffs merely seek equitable, not compensable,
relief. Finally, the appropriateness of punitive damages cannot, and should not, be
determined prior to a finding of underlying liability.
A) Due process requires that a jury determine that punitive
damages are based on a plaintiff's individualized harm.
Punitive damages are a deprivation of property requiring safeguards to ensure
that any such award is not arbitrary and fully comports with due process. Philip Morris v.
Williams, ____ U.S. _____, 127 S.Ct. 1057, 1061, 166 L.Ed.2d 940 ( 2007). This
requirement applies both to the procedures applicable to the jury's decision to award punitive
damages and the calculation of the amount. 127 S.Ct. at 1061. By mandating that punitive
damages be addressed in the first trial phase, before a class has been certified, the circuit
court's Trial Plan Order fails to ensure that any punitive damages award is reasonably related
to any actual harm suffered by any plaintiff. The petitioners are essentially left with no way
to address individualized claims of particular plaintiffs, and demonstrate how their
particularized exposures, if any, caused no increased risk of contracting a particular disease.
Unquestionably, this procedure does not comport with the holdings of the Supreme Court in Philip Morris.
In Williams, the Supreme Court found that the trial court violated defendant's
due process rights when it failed to ensure that the jury did not base its punitive damages
award in part upon its desire to punish the defendant for harming persons who are not before
the court. Id. at 1060. The Court ruled that a punitive damages award must rely upon the
defendant's conduct toward the plaintiff. Id. at 1063. Otherwise, a defendant has no
adequate notice of the magnitude of the penalty that might be assessed against it; no ability
to raise its defenses against the claim of persons not before the court; and no opportunity to
contest liability as to such individuals. Id. Therein, the Supreme Court also stated:
[T]o permit punishment for injuring a nonparty victim would
add a near standardless dimension to the punitive damages
equation. How many such victims are there? How seriously
were they injured? Under what circumstances did injury occur?
The trial will not likely answer such questions as to nonparty
victims. The jury will be left to speculate. And the fundamental
due process concerns to which our punitive damages cases refer
- risks of arbitrariness, uncertainty and lack of notice - will be
magnified. . .
[W]e can find no authority supporting the use of punitive
damages awards for the purpose of punishing a defendant for
harming others. We have said that it may be appropriate to
consider the reasonableness of a punitive damages award in light
of the potential harm the defendant's conduct could have
caused. But we have made clear that the potential harm at issue
was harm potentially caused the plaintiff.
Id. (internal citations omitted).
The Supreme Court warned that procedural safeguards must be employed to
ensure that juries do not impose awards that run afoul of the Due Process Clause:
[G]iven the risks of arbitrariness, the concern for adequate
notice, and the risk that punitive damages awards can, in
practice, impose one State's (or one jury's) policies . . . upon
other States - all of which accompany awards that, today, may
be many times the size of such awards in the 18th and 19th centuries . . . - it is particularly important that States avoid
procedure that unnecessarily deprives juries of proper legal
Id. at 1064 (internal citation omitted).
None of our prior decisions concerning mass tort trial plans have contemplated the
scenario where punitive damages are permitted to be assessed before a class has been
certified in an action seeking only medical-monitoring damages. For example, in In re West
Virginia Rezulin Ligitation, 214 W. Va. 52, 585 S.E.2d 52 (2003), an action seeking both a
monetary award for medical monitoring costs and compensatory damages, this Court
discussed only the appropriateness of class treatment, and did not touch at all upon the issue
of whether or how punitive damages would be available. Additionally, the medical
monitoring cases in In re Tobacco Litigation, 215 W. Va. 476, 600 S.E.2d 188 (2004),
involved a decision stemming from a defense verdict at trial, where personal injury claims
were asserted by individuals who were required to prove specific causation, actual damages,
and entitlement to punitive damages. A punitive damages award was not at issue in that case
either. Thus, as I see it, there are no prior decisions of this Court that directly govern, in their
entirety, the issues of first impression presented by this action.
The Trial Plan Order at issue here does not contain the necessary procedural
safeguards to ensure that due process is afforded. By trying punitive damages during the first
phase of trial, the petitioners are prevented from presenting every available defense, and from
confronting and cross-examining adverse witnesses. As the petitioners correctly point out,
the universe of plaintiffs will not even be defined until after a trial on the merits, and thus,
the petitioners will have no assurance as to whether additional individuals will be bound by
the judgment; who those individuals might be through class descriptions; and how the time
frames might be defined for those plaintiffs. Indeed, the applicable time frame is directly
relevant to the issue of what conduct of any given defendant a jury is permitted to consider
in connection with a punitive damages award. Behavior that a jury could conceivably find
culpable that occurred in 1969 versus 1999, will not apply to all defendants, or to all named
plaintiffs, or to all potential future class-members. Accordingly, I believe it is
constitutionally inappropriate to delay class certification proceedings when the plaintiffs seek
to obtain a punitive damages judgment on a class-wide basis.
B) The circuit court's order is unconstitutional because it
requires a determination of punitive damages prior to any
finding of actual liability against any defendant.
In its order, the circuit court bifurcated liability and punitive damages from
medical monitoring and class certification. Phase One therefore excludes key components
of liability, such as actual causation and all factors of Bower v. Westinghouse Electric Corp., 206 W. Va. 133, 139, 522 S.E.2d 424 (1999), necessary to determine the appropriateness of
medical monitoring, and mandates a determination of punitive damages ahead of any liability
finding. I believe this procedure is constitutionally flawed, particularly in light of the United
States Supreme Court's recent decision in Williams. Punitive damages must bear a
reasonable relationship to the harm that is likely to occur from the defendant's conduct as well
as to the harm that actually has occurred, and can be awarded only if a defendant is liable to
a plaintiff. Syl. Pts. 1 and 3, in part, Garnes v. Fleming Landfill, Inc. , 186 W. Va. 656, 413
S.E.2d 897 (1991). As stated above, I believe that the instant litigation is an entirely different
case from other medical monitoring cases previously considered by this Court. Because this
case is the first class-action that seeks only medical-monitoring damages, and not
compensatory damages, it presents issues of first impression never squarely addressed by this
court. Accordingly, I am not convinced that it is appropriate, as it was in In re Tobacco
Litigiation to permit an assessment of punitive damages prior to making a finding of liability
in the instant action.
C) Punitive damages are not appropriate in an equitable
medical monitoring class action.
I also believe that the circuit court has exceeded its authority by permitting the
respondents to proceed with a punitive damages claim in this matter. Our Court has defined
the injury claimed by medical monitoring plaintiffs as a significantly increased risk of
contracting a particular disease. See State ex rel. Chemtall v. Madden, 216 W. Va. 443, 455,
607 S.E.2d 772, 784 (2004) (emphasis added). A plaintiff is not required to show that a
particular disease is certain or even likely to occur as a result of exposure. All that must be
demonstrated is that the plaintiff has a significantly increased risk of contracting a particular
disease relative to what would be the case in the absence of exposure, and '[n]o particular
level of quantification is necessary to satisfy this requirement.' Bower, 206 W. Va. at 142,
522 S.E.2d at 433. Our Court has long recognized that a plaintiff may not recover punitive
damages in the absence of actual harm and recovery of compensatory damages. See Garnes,
186 W. Va. at 667 & Syl. Pt. 1. Because the respondents have not asserted personal injury
claims, as they have not suffered any actual, present physical injuries from their alleged
exposure to petitioners' products, punitive damages simply should not be available in this
Furthermore, the Due Process Clause requires a jury to measure the entitlement
to punitive damages by the amount of harm suffered by the respondents, and prohibits
grossly excessive or arbitrary punishments. State Farm Mut. Auto Ins. Co. v. Campbell, 538
U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). A proper measure of punitive
damages begins with a determination of the proportionality between compensatory damages
and punitive damages. Id., 538 U.S. at 418. Any award of punitive damages in this class
action will be completely arbitrary because there are no actual compensatory damages on
which to base a multiplier. This Court has never before permitted a phase one trial of partial
liability plus punitive damages entitlement and multiplier to occur in an uncertified, medical-
monitoring class action in which no personal injury claims have ever been brought. To permit
punitive damages in a case of this nature is to create a landslide on the existing slippery slope
of our traditional injury-based tort law.
2) The Circuit Court Committed Clear Error Because the Trial Plan Order
Fails to Address Material Differences Between West Virginia and
Finally, it is my opinion that the material differences between our law and
Pennsylvania's law make the circuit court's trial plan simply unworkable. Rule 23(a)(3) of
the West Virginia Rules of Civil Procedure requires that the claims or defenses of the
representative parties [be] typical of the claims or defenses of the class. A representative
party's claim or defense is typical if it arises from the same event or practice or course of
conduct that gives rise to the claims of other class members, and if his or her claims are based
on the same legal theory. State ex rel Chemtall v. Madden, 216 W. Va. 443, 455, 607 S.E.2d
772, 784 (2004). In Chemtall I, this Court stated that:
In the instant case the representative parties were all allegedly
exposed to acrylamide in West Virginia which means that West
Virginia law on medical monitoring should be applied to the
representative plaintiffs. Respondents must therefore show, and
the circuit court must find, that the West Virginia medical
monitoring claims are typical of the medical monitoring claims
of the proposed class members who were allegedly exposed in
other states. In other words, it must be shown, among other
things, that their claims are based on the same legal theory.
Id. (Emphasis in original).
This Court also provided guidance in that decision by stating that:
In order for the representative plaintiffs who were allegedly
exposed in West Virginia to show that they could represent the
proposed class members allegedly exposed in the other states,
they must show that the other states recognize medical
monitoring causes of action which are reasonably co-extensive with the medical monitoring causes of action in West Virginia.
This is due to the fact that the typicality requirement requires the
representative plaintiffs to establish the bulk of the elements of
each class member's claim when they prove their own claims.
Id. (Emphasis added).
In West Virginia, it is well settled that product manufacturers can be held
strictly liable when a product defect is proven. Thus, causation essentially need not be proven
in order to establish liability. Petitioners assert that, in Pennsylvania, however, liability must
be proven by demonstrating negligence on the part of the product manufacturer. See, e.g.,
Redland Soccer Club, Inc. v. Department of the Army and Department of Defense of the U.S.,
696 A.2d 137, 145 (Pa. 1997). They assert that unlike West Virginia, Pennsylvania has not
yet adopted a strict liability theory of proof. The trial plan, as postured, does not seek to
litigate the issue of negligence for those Pennsylvania claims. It only assumes that strict
liability would apply. Although the circuit court, by pointing to a Third Circuit decision, Barnes v. American Tobacco Co., 161 F.3d 127 (3rd Cir. 1998) (assuming without deciding
that the Pennsylvania Supreme Court would allow an intentional tort or strict product liability
claim for medical monitoring), believes that Pennsylvania would be inclined to adopt strict
liability if it were presented with the issue, the fact remains that Pennsylvania's highest state
court has not yet made such a ruling.
Without conducting an in depth review of Pennsylvania law on this issue , if the
state of the law in Pennsylvania is what petitioners say it is, then there does in fact appear to
be material differences in West Virginia and Pennsylvania law regarding issues of liability in
a medical monitoring action. Accordingly, as a matter of constitutional full faith and credit
and due process principles, the West Virginia and Pennsylvania claims cannot be tried under
one cohesive trial plan. I believe that the circuit court commits clear in error in attempting
to expand Pennsylvania law to include strict liability claims for purposes of this case. At the
very least, the parties should have been given ample opportunity by the circuit court to brief
these issues and present them for oral argument, prior to making its own unilateral decision.
In summary, medical monitoring claims, particularly in the class action context,
present new and important challenges for both the circuit courts and litigants. In light of this,
I am troubled by this Court's unwillingness to entertain the matters before us here, as they are
properly ripe for adjudication. The errors below require correction now, to ensure that the
parties and the circuit court avoid the time, expense, and prejudice of a constitutionally infirm
trial. Accordingly, I believe this Court should take the opportunity to address these issues and
I would grant the writ.
For these reasons I have set forth, I respectfully concur to and dissent from the
Our inaction constrains the effective choices realistically available to the petitioners
to such a degree as to implicate grave due process considerations. By failing to confront the
issues raised herein, we are acquiescing to a system whereby case management machinations
and procedural chicanery rather than substantive law and facts appear to determine the
outcome of the litigation. The right to defend yields to the need to settle.