Attorneys for the Petitioners:
The Law Offices of Stuart Calwell, PLLC
Charleston, West Virginia
Attorney for Petitioners,
Ronald Allman, et al.
Joseph P. Whittington
Peyton, Parenti & Whittington
Nitro, West Virginia
Attorney for Petitioner,
John E. Sutter
Robert H. Miller, II
The Sutter Law Firm, PLLC
Charleston, West Virginia
Attorneys for Petitioner,
Alfretta Baugh, Administratrix
Stephen B. Farmer
G. Kenneth Robertson
Farmer, Cline & Arnold
Charleston, West Virginia,
Attorneys for the Petitioner,
Mobil Oil Corporation
James F. Humphreys
J. David Cecil
James F. Humphreys & Associates, LC
Charleston, West Virginia
Attorneys for the Petitioners,
Romie Kermit Jones, et al.
Attorneys for the Respondents:
A. Andrew MacQueen, III
Senior Status Judge
Charleston, West Virginia
Michael B. Victorson
Dennis C. Sauter
A. L. Emch
Jackson & Kelly
Charleston, West Virginia
David K. Hendrickson
R. Scott Long
Hendrickson & Long
Charleston, West Virginia
Eric M. James
Spilman, Thomas & Battle
Charleston, West Virginia
Joseph S. Beeson
Robinson & McElwee
Charleston, West Virginia
Attorneys for certain defendants below
David E. Lamm
Davies, McFarland & Carroll, PC
Attorneys for the Respondents,
The Lincoln Electric Company, et al.
Nora Barry Fischer
Michael A. Cohen
Pietragallo, Bosick & Gordon
Attorneys for the Respondent,
General Electric Company
Attorneys for Amici Curiae:
William K. Schwartz
Harvit & Schwartz, LC
Charleston, West Virginia
Attorneys for Amici Curiae,
Plaintiffs Represented by Harvit & Schwartz, LC
Luke A. Lafferre
Huddleston, Bolen, Beatty, Porter & Copen
Huntington, West Virginia
Attorneys for Amici Curiae,
CSX Transportation, Inc., et al.
Oral Argument Participant:
The Segal Law Firm
Charleston, West Virginia
Attorney for Okey Connolly, et al.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision of this case.
1. 'A writ of mandamus
will not issue unless three elements coexist -- (1) a clear legal right in the
petitioner to the relief sought; (2) a legal duty on the part of respondent
to do the thing which the petitioner seeks to compel; and (3) the absence of
another adequate remedy.' Syl. pt. 2, State ex rel. Kucera v. City of Wheeling,
153 W.Va. 538, 170 S.E.2d 367 (1969). Syl. Pt. 10, State ex rel. Marockie
v. Wagoner, 191 W.Va. 458, 446 S.E.2d 680 (1994).
2. A creative, innovative
trial management plan developed by a trial court which is designed to achieve
an orderly, reasonably swift and efficient disposition of mass liability cases
will be approved so long as the plan does not trespass upon the procedural due
process rights of the parties. Syl. Pt. 3, State ex rel. Appalachian
Power Co. v. MacQueen, 198 W.Va. 1, 479 S.E.2d 300 (1996).
This Court issued a rule on
June 7, 2001, requiring Respondent, the Honorable A. Andrew MacQueen, III, to
show cause as to why a writ of prohibition should not issue to prevent Respondent
from implementing a litigation management plan (hereinafter referred to as the
master plan) developed for addressing the alleged claims of approximately
8,000See footnote 1 1 asbestos
plaintiffs. Petitioners comprise a smaller group of those individuals who have
filed personal injury cases predicated on injury and death due to exposure to
asbestos dust.See footnote 2 2
In support of their request for relief, Petitioners argue that the master
plan prepared by Respondent does not comply with the November 17, 2000, order
entered by the Chief Justice of this Court, which referred the subject claims
to the Respondent under the procedures set forth in Trial Court Rule 26.01 (TCR
26.01"). As relief, Petitioners seek the resolution of their claims en
masse through a common issues trial on the issues of product defect, notice
and knowledge, and punitive damages. Mobil Oil filed a cross-petition through
which it seeks to have TCR 26.01 declared unconstitutionally vagueSee
footnote 3 3 and to have the master plan set aside based on
allegations of arbitrary and capricious conduct.See
footnote 4 4 After carefully considering the issues presented
in the request for extraordinary relief, we conclude that a writ of mandamusSee
footnote 5 5 shall issue for the reasons stated herein.
Realizing the continuing need
for alternatives to the traditional case-by-case trial in various mass litigation
situations, this Court endeavored to develop a procedure by which such alternatives
could be examined and appropriate trial management plans could be developed.
In furtherance of this goal, this Court adopted TCR 26.01, which governs the
establishment and operation of a Mass Litigation Panel [hereinafter MLP].See
footnote 7 7
Pursuant to the provisions
of section (e) of TCR 26.01, Respondent joined the Honorable Arthur M. Recht,
Judge of the First Judicial Circuit, in filing a motion with the Chief Justice
of this Court on September 10, 1999, requesting the referral of all asbestos-based personal injury cases in West Virginia to the MLP.See
footnote 8 8 Although this motion was denied because it did
not entirely conform with all of the provisions of TCR 26.01, a subsequent referral
motion filed by Respondent and Judge Recht on June 27, 2000, was grantedSee
footnote 9 9 by then Chief Justice Maynard by order dated November
17, 2000. In addition to referring all then pending West Virginia asbestos cases
to the MLP, Chief Justice Maynard's administrative order directed a stay of
further proceedings in all pending asbestos cases, except for specific cases
subsequently identified in an order dated February 28, 2001, entered by Chief
On behalf of the MLP, Judge
Recht wrote a letter dated December 8, 2000, requesting that the Chief Justice
transfer all asbestos cases referred to the MLP to the Circuit Court of Kanawha
County, and that Respondent be designated to manage the cases so transferred.
The request was granted by administrative order of this Court dated December
20, 2000. By administrative order dated January 30, 2001, Respondent was recalled
after his retirement and attainment of senior judge statusSee
footnote 10 10 for temporary assignment to the Kanawha County
Circuit Court and for service on the MLP.
A series of meetings between Respondent and counsel for the plaintiffs and defendants in the pending asbestos cases were held for the purpose of formulating a plan for proceeding with the transferred cases.See footnote 11 11 During the course of the meetings, Respondent announced the provisions of a master plan for proceeding with the transferred cases.See footnote 12 12 The master plan was reduced to writing on May 23, 2001, when Respondent signed an order detailing the plan. Among its numerous provisions, the master plan outlines a different trial approach than that formerly employed. Rather than providing for an en masse common- issues trial, the master plan sets forth the dates for a series of small group, all issue trials.See footnote 13 13
Petitioners and cross-petitioners seek extraordinary relief from this Court
to prevent the implementation of the master plan.
As a background to the overwhelming
management issues presented by asbestos litigation we iterate comments previously
articulated in MacQueen:
Asbestos cases such as those we are now considering present a complex pattern of legal, social, and political issues that threaten to cripple the common law system of adjudication, if for no other reason by the sheer volume of cases. James A. Henderson, Jr. & Aaron D. Twerski, Stargazing: The Future of American Products Liability Law, 66 N.Y.U. L.Rev. 1332, 1336 (1991). A recent study concluded that the disposition of all currently pending asbestos cases for both personal injury and property damages, if treated in the traditional course of litigation, would require approximately 150 judge years. See Jack B. Weinstein, Individual Justice in Mass Tort Litigation 140 (1995) (citing Thomas Willging, History of Asbestos Case Management (Federal Judicial Center staff paper for June 25, 1990, National Asbestos Conference)). Congress, by not creating any legislative solution to these problems, has effectively forced the courts to adopt diverse, innovative, and often non-traditional judicial management techniques to reduce the burden of asbestos litigation that seem to be paralyzing their active dockets.
198 W.Va. at 4-5, 479 S.E.2d at 303-04. In testimony offered to the Committee on the Judiciary of the United States House of Representatives on July 1, 1999, Professor William N. Eskridge of Yale Law School offered the following observations about the effects of asbestos litigation on the judiciary:
A big loser is the judiciary, which has a larger management problem than ever before. The courts continue to be deluged with asbestos lawsuits. There are now more than 200,000 of them in the system, and tens of thousands of new cases were added last year. . . The asbestos litigation problem is one that has defeated the judiciary. An increasing number of judges are now admitting it.
H.R. Comm. on Judiciary, The Fairness in Asbestos Compensation Act: Hearings
on H.R. 1283, 106th Cong. (July 1, 1999); see also Ortiz v. Fibreboard
Corp., 527 U.S. 815, 821 (1999) (stating that
asbestos litigation defies customary judicial administration and calls
for national legislation).
Having recognized the managerial
nightmare presented by what has been referred to as an elephantine mass
of asbestos cases, we nevertheless proceed to examine both the procedural
posture of this matter before us and to determine whether the master plan at
issue complies with the previous directives of this Court and the requirements
of TCR 26.01. Ortiz, 527 U.S. at 821. As an initial matter, we note that
this Court's involvement in this matter is both prompted by and required by
our constitutional obligation to supervise the State's entire court system.
This weighty responsibility was previously articulated in State ex rel. Bagley
v. Blankenship, 161 W.Va. 630, 246 S.E.2d 99 (1978):
The Judicial Reorganization Amendment, Article VIII, Section 3, of the Constitution, placed heavy responsibilities on this Court for administration of the state's entire court system. The mandate of the people, so expressed, commands the members of the Court to be alert to the needs and requirements of the court system throughout the state.
161 W.Va. at 644-45, 246 S.E.2d at 107 (emphasis supplied).
We invoke our grant of constitutional
supervisory power over the court system as a whole based on the absence of any
explicit judicial review provided under TCR 26.01 for matters that are proceeding under the mass litigation provisions set forth
in that rule. Because the provisions of TCR 26.01control the underlying civil
action, we do not view this matter as one affected by case law interpreting
various rules of civil procedure, including Rules 20, 23, or 42, which respectively
address issues of joinder, class action, and consolidation. TCR 26.01 was promulgated
and adopted by this Court under our constitutional rule-making authority for
the express purpose of authorizing the creation of a mass litigation panel for
the following objective: To develop and implement case management and
trial methodologies for mass litigation and to fairly and expeditiously dispose
of civil litigation. W.Va. T.C.R. 26.01(b)(1). Through the creation of
such a mass litigation panel, it was believed that this State's judicial system
and those individuals seeking redress would benefit by permitting the use of
innovative means of trial management concerning issues unique to mass litigation,
which would in turn encourage a more expeditious resolution of these matters
than that permitted by traditional means of case resolution. Despite the laudable
objectives underlying TCR 26.01 and much effort on the part of both counsel
and Respondent towards this goal, the asbestos cases that are affected by the
master plan have not reached either trial or resolution as of this date.See
footnote 15 15
The underlying matters were approved
to proceed under TCR 26.01 by administrative order entered by then Chief Justice
Maynard on November 17, 2000, and a plan was ordered to be produced within ninety
days of that order's entry. The master plan prepared by Respondent in response
to the directives of this Court's Chief Justice under authority of TCR 26.01 was
first provided to this judicial body when Respondent filed his response to the
petition on May 25, 2001. The master plan provides for the grouping of certain
plaintiffs and includes the scheduling of a trial date of September 3, 2001, for
the initial group of twenty plaintiffs that are suffering from either asbestos-induced
cancer or mesothelioma.See footnote 16
16 Following this first trial group, the master plan provides
for a second group trial for November 12, 2001 consisting of two sub-groups of
twenty-five plaintiffs each.See footnote
17 17 The only requisite for being included in this second or
subsequent trial grouping is that the plaintiffs are to be suffering or have previously
suffered from any 'disease process', or physical injury or disease which
may be alleged to result from exposure to asbestos or asbestos containing products.
The master plan permits the plaintiffs to control the selection of those plaintiffs
to comprise each trial group with the directive that [i]n selecting any
trial group or sub-group, the plaintiffs shall consider factors such as common
product exposure, common work sites and related factors in order to minimize the
required number of witnesses, to accommodate defense counsel who may represent more than one
defendant and to generally facilitate the trial process. The master plan
provides a trial date of January 14, 2002, for the third grouping of plaintiffs,
which are to be comprised of not more than four sub-groups of twenty-five plaintiffs
each. Trial dates for the fourth and fifth groups are slated for March 11, 2001,
and May 13, 2001, respectively. The plan provides a scheduling mechanism by
which these trials are to operate with the designation of any given trial group
occurring 210 days before the selected trial date and, in similar fashion, deadlines
for various types of discovery, witness disclosure, and pre-trial conferences
are stated with reference to the number of days before the selected trial date.
While the master plan, a document that is nineteen pages in length, represents extensive consideration of the issues of discovery, motion filing and resolution, coordination of counsel, document depositing, and non-waiver of objections to consolidation, we are not convinced that the master plan fully meets the directives contained in the November 17, 2000, administrative order of this Court. That administrative order required, implicitly if not explicitly, that the plan to be developed would include a methodolog[y] for . . . fairly and expeditiously dispos[ing] of [the asbestos] civil litigation. W.Va. T.C.R. 26.01. Notwithstanding the specification of trial groupings for trials scheduled for September and November 2001 and the contemplation of additional group trials, the master plan appears in need of supplementation if the goals of TCR 26.01 are to be met.
To be clear, we do not wish to halt the process that has been set in motion with the master plan; our actions in this case are merely to provide assistance with the unquestionably daunting task of trial management that is created by the pendency of the numerous asbestos cases. We note that Respondent, to whom this entire matter was previously assigned, is now a senior-status judge. We note further that Respondent is both experienced and uniquely qualified to conduct as many trials, be they single or all-issue, as Respondent is desirous of conducting and as time and circumstances permit. We cannot deny, however, that the overall administration of the litigation will impose a substantial administrative burden on Respondent, especially given this Court's decision that the litigation must be permitted and encouraged to proceed as expeditiously as possible. We are similarly concerned that the heavy administrative burden of supervising these asbestos cases would likely impinge on Respondent's availability to preside over as many of the all issues trials as he may choose to try.
Based on the foregoing, we conclude that the first master case management order of the lower court, entered May 24, 2001, should be supplemented so as to sufficiently dispose of the case management issues contemplated by the order of then Chief Justice Maynard and TCR 26.01 in conformity with the following directives:
1. The Clerk shall enter the mandate
for this writ, with the appropriate order, and such mandate shall be effective,
2. Subject to the limitations
hereafter expressly stated and with the consent and endorsement by order of
the Chief Justice, the supervision of the asbestos personal injury litigation
filed in or transferred to and pending in the Circuit Court of Kanawha County,
and such additional asbestos personal injury litigation as is hereafter filed
in or transferred to the Circuit Court of Kanawha County, all known as Civil
Action No. 01-C-9000, is to be supplemented with the entry of an order (hereinafter
the assignment order) by the Chief Justice designating an additional
judge (hereinafter the supervising judge) to work with, and to have
the assistance of Respondent and such additional circuit court judges as may
be assigned, in the administration of the asbestos litigation.
3. All provisions of the First
Master Case Management Order entered May 24, 2001, shall remain and be
in full force and effect as to all cases specified and now or hereafter set
for trial as all-issue cases under such order, except as and to
the extent modified by Respondent or any judge assigned to preside over such
all-issue trials, and except as otherwise expressly directed herein. Cases that
are now or hereafter selected for trial under the all-issues format provided
for in the First Master Case Management Order shall remain subject
to the provisions of such order and the cases selected for such all-issues trials to be conducted by Respondent may be drawn from the entire pool of
cases included within Civil Action No. 01-C-9000.
Moreover, as to all other
cases encompassed by Civil Action No. 01-C-9000, all provisions of the First
Master Case Management Order entered May 24, 2000, shall remain and be
in full force and effect, except as and to the extent modified by the supervising
judge, and except as otherwise expressly directed herein.
4. The provisions of paragraph
3, Filing of Cases, of the order of May 24, 2001, are hereby approved
and confirmed, in conformity with the order of the Chief Justice to be entered
as a consequence of this action, which express approval and confirmation is
not to be considered a derogation of the effect of any other portion of such
5. Respondent shall assure
that the Clerk of the Circuit Court of Kanawha County transmits to the supervising
judge within twenty days after the entry of the assignment order a complete
list of all cases (by parties, counsel and number) designated for trial under
paragraphs 11.1 and 11.2 of the order of May 24, 2001, as the September 2001
Trial Group and designated for trial as the November 2001 Trial Group, including
any cases substituted pursuant to the terms of the master plan allowing for
substitution of plaintiffs.
6. As additional cases are designated
under the order of May 24, 2001, for all- issues trials to occur before Respondent
on September 3, 2001, November 12, 2001, January 14, 2002, March 11, 2002, and
May 13, 2002, or as a substitute for a case previously designated, Respondent
shall assure that the Clerk of the Circuit Court of Kanawha County transmits to
the supervising judge within ten days after such designation, the list of such
cases so designated, with a corresponding listing of parties, counsel, and action
Based upon the stay of all matters other than discovery in connection with this Court's issuance in this matter of the rule to show cause order on June 7, 2001, Respondent may need to adjust the previously-scheduled amounts of time between designation of the group and trial for purposes of discovery and trial preparation as those time periods pertain to the third trial groups. While we recognize that the time constraints of pre-trial preparation may result in the need to select an alternative trial date for the third trial groupings, we respectfully express the hope that the trial date selected will remain, or be set as close as possible to, the January 14, 2002, date provided for in the master plan.
7. The supervising judge shall
meet and confer with plaintiffs' and defendants' counsel in those cases assigned
to Respondent by Order of the Chief Justice dated December 20, 2000, which then
have not been designated for trial before Respondent in any of the all- issue
trial groups, to consider the number and type of trials deemed appropriate that
are in addition to those to be tried by Respondent. The first of such meetings shall
occur not later than thirty days after the entry of the assignment order. The
supervising judge shall also consider any information then available concerning
the selection of cases for all-issues trials to be presided over by Respondent.
At the option of the supervising judge, the parties may also meet and confer
on any matters in the order of May 24, 2001, generally applicable to all cases
to be thereafter set for trial, upon which the supervising judge or the representatives
8. By way of example only, appropriate trial groups might include, but not be limited to: (1) cases expected to be set for trial on March 11, 2002, or May 13, 2002, before Judge MacQueen; (2) cases involving the premises liability theory; (3) the steelworker cases previously set for trial; (4) cases with issues susceptible to mass trial of all or most parties; (5) cases involving common work sites; (6) cases involving common product exposure; (7) cases involving FELA; and (8) cases which, by reason of a particular fact or circumstances in the case, clearly require the separate trial of issues otherwise suited to consolidation. Notwithstanding the preservation of objections to any group trial concept, counsel and/or their representatives are expected to participate in good faith in all such planning conferences with the goal of assisting the supervising judge in adopting a plan that the judge considers will properly serve the objectives of managing this litigation and the legitimate interests of all parties.
9. Within fifteen days of the issuance of the mandate herein, counsel for the plaintiffs and defendants shall caucus and select appropriate representatives to meet and confer with the supervising judge and give written notice of such selection to the supervising judge forthwith but not later than three business days thereafter. Counsel for any party not selected as a representative may furnish to the supervising judge, and one or more representatives acting as a representative of that party, a brief memorandum of that party's position on such issues, not to exceed ten pages, which shall primarily address administrative suggestions for cases or issues to be tried in this process and not be primarily focused on other positions the party may wish to assert concerning the propriety of the mass litigation process. Any such party's objections to any phase of the mass litigation process shall not be deemed waived by participation of counsel in the planning process, notwithstanding whether such objection is made in person or through written memoranda.
10. The supervising judge
shall report to the Chief Justice as to: (1) the number and makeup of trial
groups; (2) the number of judges that will be necessary to try the particular
cases or issues; (3) after consultation with Judge MacQueen, the dates upon
which Judge MacQueen would undertake trials in addition to those now scheduled
to begin on or before May 13, 2002; (4) the manner in which evidence from previous
and/or subsequent asbestos trials may be utilized; (5) such other matters as
may be appropriate to expeditiously and fairly try these cases or issues therein;
and (6) the proposed schedule for any trials in addition to those set by the order of May 24, 2001, with a view toward commencing
all trials no later than July 1, 2002, to provide for the expeditious disposal
of the litigation . Such report shall include copies of any amendments the supervising
judge has made or expects to make to the order of May 24, 2001, and shall be
filed with the Chief Justice within 60 days of the entry of the assignment order.
11. Upon receipt of the reports
last mentioned, the Chief Justice shall appoint such number of judges to try
these cases as is deemed appropriate.
12. The order of the Chief
Justice entered upon the issuance of the mandate in this case shall provide
that all asbestos cases filed subsequent to the Motion to Refer filed on June
27, 2000, are transferred to the Mass Litigation Panel for inclusion in the
appropriate group and asbestos cases filed subsequent hereto may, upon appropriate
order, be transferred to the Mass Litigation Panel for consideration of assignment
to the appropriate trial group upon motion of a party, or upon motion of a member
of the Mass Litigation Panel, or upon motion of the supervising judge or the
judge assigned to hear any case or trial group.
13. The supervising judge
shall confer with and have the assistance of the Administrative Director of
the Courts to plan and coordinate with the Chief Justice the assignment of a
judge or judges by the Chief Justice to try these cases, to make arrangements for available courtrooms and appropriate equipment, and to arrange for such
other matters necessary to try these cases.
14. We hereby direct the Clerk
of the Supreme Court to provide a copy of this Opinion to lead counsel for the
parties from whom the Clerk has received pleadings addressing this Motion, to
the Mass Litigation Panel, and to the Clerk of the Circuit Court of Kanawha
County who shall provide a copy of same to all counsel of record in that civil
action designated as No. 01-C-9000 and to all circuit court judges.
Having resolved the issues presented to this Court, we hereby issue a writ of mandamus as moulded.
Writ granted as moulded.