Paul M. Friedberg, Esq.
LEWIS, FRIEDBERG, GLASSER, CASEY & ROLLINS
Charleston, West Virginia
James McLaughlin, Esq.
Morgantown, West Virginia
Attorneys for Petitioner
Scott S. Segal, Esq.
SEGAL & DAVIS
Charleston, West Virginia
Ronald P. Motley, Esq.
NESS, MOTLEY, LOADHOLT, RICHARDSON & POOLE
Charleston, South Carolina
Arthur R. Miller, Esq.
Attorneys for Respondents
JUSTICE NEELY delivered the Opinion of the Court.
JUSTICE MILLER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. "Personal jurisdiction 'premised on the placement of
a product into the stream of commerce is consistent with the Due
Process Clause' and can be exercised without the need to show
additional conduct by the defendant aimed at the forum state.
Asahi Metal Industry Co. v. Superior Court of California, 480 U.S.
102, 117, 107 S.Ct. 1026, 1034, 94 L.Ed.2d 92 (1987)." Syllabus
Point 2, Hill by Hill v. Showa Denko, K.K., 188 W.Va. 654, 425
S.E.2d 609 (1992).
2. In determining whether our courts have jurisdiction under the stream of commerce theory articulated in Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987), the rule in West Virginia will always be congruent with the outer edge of the due process envelope that, as determined by the Supreme Court of the United States, circumscribes jurisdiction.
CSR Limited (hereinafter "CSR") is a new and unique type
of defendant in that black hole of litigation-- consolidated
asbestos cases. Between 1948 and 1966 CSR was sales agent for its
partially-owned subsidiary that mined raw asbestos fibers. The raw
asbestos fibers were sold F.O.B. Freemantle, Australia and other
ports in Western Australia to Johns Manville Corporation which then
delivered them to the United States. Because Johns Manville had
its own mines and purchased asbestos fibers from several other
mines throughout the world, Johns Manville received only a small
portion of its asbestos fibers from CSR.
CSR maintains that once it ceased as sales agent for its
partially-owned subsidiary, it had no influence, control or even
substantive knowledge concerning the use and distribution of the
asbestos fibers. According to CSR, neither CSR nor any of its
subsidiaries have been engaged in the manufacturing, processing,
importing, conversion, and selling of, or otherwise involved with
asbestos-containing products in the United States.
Based on these contentions, CSR, alleging lack of
personal jurisdiction, moved to dismiss the complaints filed
against it in a consolidated asbestos case known as Mass III in the
Circuit Court of Kanawha County. Chief Judge A. Andrew MacQueen denied CSR's motion to dismiss the complaints. CSR then sought a
rule to show cause in prohibition to challenge Judge MacQueen's
ruling on jurisdiction.
The plaintiffs below (respondents here) assert that CSR
mined substantial quantities of crocidolite asbestos (commonly
known as "blue fiber") and sold this asbestos in the United States
exclusively to Johns Manville, one of the world's largest
manufacturers of asbestos products. Johns Manville in turn sold
products containing CSR's asbestos throughout the United States.
According to the plaintiffs-respondents, CSR's involvement extended
far beyond mining and delivering the asbestos fibers FOB the dock
in Australia in blissful ignorance of the fibers' final
Specifically, the plaintiffs-respondents contend that CSR
sought to exploit the American market for raw asbestos by
systematically and continuously selling substantial quantities
(37,000 tons) of crocidolite asbestos to Johns Manville between
1948 and 1966. CSR's own sales records, plaintiffs-respondents
argue, show that CSR shipped fiber to ports in various states.
Notably, CSR does not contest jurisdiction in the states to which
the fiber then was routed-- specifically, Johns Manville plants located in Louisiana, New Jersey, Illinois, Texas and California.See footnote 1
In short, the plaintiffs-respondents assert that the evidence below establishes or will establish the following: CSR representatives had a vital interest in Johns Manville's manufacture and distribution of CSR's raw asbestos in the United States; CSR actively pursued sales to Johns Manville and other manufacturers of building materials for the United States market; CSR frequently visited Johns Manville to obtain information about the products Johns Manville was manufacturing with its asbestos; and CSR played an active role in Manville's product development to encourage use of its blue crocidolite fiber. In the thick of all this activity, the plaintiffs-respondents contend, CSR could not conceivably have been unaware that its asbestos was being used in products widely distributed by Johns Manville throughout all of the United States including, obviously, West Virginia.
At oral argument, it became apparent that CSR has
confused jurisdictional issues with questions of CSR's innocence of
wrongdoing. In a nutshell, CSR argues that as simply a
manufacturer of raw materials, it is not liable to the plaintiffs
in this mass tort case. Unlike a manufacturer of a defective
component part that caused some end product to fail, CSR contends its role was more comparable to a manufacturer of raw steel, with
no control over the end product into which its raw material was
This Court, however, is satisfied that CSR introduced a
product into the stream of American commerce that it knew would be
used in West Virginia. "Personal jurisdiction 'premised on the
placement of a product into the stream of commerce is consistent
with the Due Process Clause' and can be exercised without the need
to show additional conduct by the defendant aimed at the forum
state." Asahi Metal Industry Co. v. Superior Court of California,
480 U.S. 102, 117, 107 S.Ct. 1026, 1034, 94 L.Ed.2d 92 (1987);
Syllabus Point 2, Hill by Hill v. Showa Denko, K.K., 188 W.Va. 654,
425 S.E.2d 609 (1992).
That CSR, as it readily concedes, is currently being sued
in asbestos cases in the State of Mississippi where its contacts
are roughly the same as they are in West Virginia dramatizes the
stickiness of the problem inherent in attempting to peel questions
of jurisdiction from liability issues. We are not unsympathetic to
CSR's plight: it is subject to suit in all fifty states and a
determination in one state that, on the merits, CSR is not liable
because it manufactured only raw materials and had no knowledge
that its raw materials were being used in a dangerous way will,
nonetheless, not be binding in any other jurisdiction.
If for a moment, however, we assume that the plaintiffs-
respondents are able to prove that CSR was part of a scheme to
profit through the sale of a product known to be dangerous, then,
having declined to assert jurisdiction, Mississippi plaintiffs (and
plaintiffs in such other states as may accede to jurisdiction) will
ravish whatever insurance fund CSR has available to pay injured
plaintiffs at the expense of West Virginia plaintiffs. See
Blankenship v. General Motors, 185 W. Va. 350, 406 S.E.2d 781
(1991). Accordingly, we hold today that in determining whether our
courts have jurisdiction under the stream of commerce theory
articulated in Asahi Metal Industry Co. v. Superior Court of
California, 480 U.S. 102 (1987), the rule in West Virginia will
always be congruent with the outer edge of the due process envelope
that, as determined by the Supreme Court of the United States,
circumscribes jurisdiction. Thus, whenever there are "such minimum
contacts with the state of the forum that the maintenance of an
action in the forum does not offend traditional notions of fair
play and substantial justice," Syllabus Point 1, in part, Hodge v.
Sands Manufacturing Company, 151 W. Va. 133, 150 S.E.2d 793 (1966);
Syllabus Point 1, in part, Hill by Hill v. Showa Denko, K.K.,
supra, the courts of this State will assert jurisdiction.
Obviously, as the Supreme Court of the United States held
in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294
(1980), jurisdiction cannot be asserted over a defendant with which a state has no contacts, no ties and no relations. However, in the
case before us, the evidence is virtually incontrovertible that CSR
introduced its asbestos fibers into the stream of American
commerce; CSR knew the products containing their fibers would be
distributed throughout the United States; CSR had an ongoing
commercial relationship with Johns Manville, the largest American
manufacturer of asbestos products; and, CSR was actively engaged in
the development and introduction of products that contained their
raw materials. These circumstances are sufficient at this time to
give our courts jurisdiction.
Accordingly, the writ of prohibition for which petitioner
prays is denied.
Footnote: 1 We note that CSR made these representations at oral argument.