Maynard, Justice, concurring:
Frankly, this case leaves
me with a profound disquiet. Mobil argues very persuasively and convincingly
that the defendants have been denied due process in our courts. In fact, after
a careful reading of the brief prepared by Steve Farmer, I am compelled to
state that I am deeply concerned that Mobil is probably correct and some federal
court will eventually tell us so. However, at this juncture at least, Mobil's
claims of due process violations are premature because the trial court has
not completed its trial plan. For that reason, I concur in the majority decision
to deny extraordinary relief and write separately.
Initially, I must state
that the observations and cautionary concerns set forth in the majority opinion
are troubling when viewed in light of opinions handed down by the United States
Supreme Court. For example, in Amchem Products, Inc. v. Windsor, 521
U.S. 591, 625, 117 S.Ct. 2231, 2250, 138 L.Ed.2d 689, 714 (1997), the Court
upheld a court of appeals' decision to decertify an asbestos class which was intended to achieve a
global settlement of current and future asbestos-related claims nationwide,
stating that individual stakes are high and disparities among class
members great. Two years later, the Court rejected another proposed
global class of asbestos cases for essentially the same reasons. Ortiz
v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999).
Mobil asserts, by referencing
opinions such as these, that we may live to regret this decision for several
* the consolidation of thousands
of dissimilar and unrelated asbestos claimants into a single trial violates
procedural rules and the constitutional right to due process and equal protection;
* consolidation of asbestos cases violates Rule 42 of the West Virginia Rules of Civil Procedure, as well as the United States and West Virginia Constitutions;
* the use of a matrix to assess damages is a blatant and indefensible violation of Mobil's due process rights;
* the method for calculating punitive damages under the mass trial format advocated by the plaintiffs is unconstitutional;
* plaintiffs' mass trial plan offers no increased efficiency over single plaintiff trials; and
* a mass trial format will violate Mobil's right to a jury trial under state law and its due process rights.
As Mr. Farmer points out
in his brief, this litigation involves thousands of plaintiffs; twenty or
more defendants; hundreds of different work sites located in a number of different
states; dozens of different occupations and circumstances of exposure; dozens
of different products with different formulations, applications, and warnings;
several different diseases; numerous different claims at different stages
of development; and at least nine different law firms, with differing interests,
representing the various plaintiffs. Additionally, the challenged conduct
spans the better part of six decades.
The predominance of individual
and irreconcilable differences from plaintiff to plaintiff in this litigation
is illustrated by the potential problems with choice of law issues. Moreover,
as many as five thousand of the plaintiffs included in the June 24, 2002 mass
trial are not West Virginia residents and were never exposed to asbestos in
this State. Rather, they have migrated here because of the asserted pro-plaintiff
bias with which Mobil claims this State handles asbestos litigation. This
improper pilgrimage must be abated before one can even consider consolidation
of cases to be a viable option.
West Virginia recognizes
the doctrine of lex loci delicti, that is, the substantive rights
between the parties are determined by the law of the place of injury.
Vest v. St. Albans Psychiatric Hosp., 182 W.Va. 228, 229, 387 S.E.2d
282, 283 (1989); McKinney v. Fairchild International, Inc., 199 W.Va.
718, 729, 487 S.E.2d 913, 924 (1997). Accordingly, the laws of many jurisdictions
(including Pennsylvania, Ohio, Maryland, Kentucky, and Virginia, to name a
few) will have to be considered and applied by a trial court during any mass
trial in this litigation. The United States Supreme Court has established
that, as a matter of due process, a state cannot categorically apply its substantive
law to govern claims in which a state has little or no interest. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-22,
105 S.Ct. 2965, 2979, 86 L.Ed. 628, 648 (1985).
All the due process arguments
are compelling, but this is the due process claim about which I am most fearful
of eventual reversal. Because so many of the plaintiffs have NO connection
whatsoever with West Virginia, and because the United States Supreme Court
was so clear in the Phillips case, I just don't see how the trial court
can tread safely through this judicial minefield.
Further, hese cases will
require presentation of evidence concerning a myriad of highly individual
facts, such as:
* the precise product(s) to which the plaintiff was exposed;
* the manner, conditions, and circumstances of each exposure;
* the dates, duration, and location of each exposure;
* the manner in which each alleged asbestos containing product was used;
* whether there was protective equipment available and actually used;
* the presence or absence of warnings included with the specific product(s) at issue; and
* each plaintiff's medical, family, and personal history, including such issues as whether and how much the plaintiff has used tobacco products, whether the plaintiff has experienced other occupational exposures to different substances (e.g., benzene, carbon tetrachloride, and coal dust) and the plaintiff's family health history.
The necessity of delving into such issues has been widely recognized by the
courts. Given these individual issues, a mass trial--indeed, even small-group
trials--would create a Frankenstein's Monster of the type postulated
by the late Professor Charles Alan Wright. Castano v. American Tobacco Co.,
84 F.3d 734, 745 n.19 (5th Cir. 1996).
The suggestion in note 8
on page 27 of Mr. Farmer's brief is probably what we ought to do. He recommends:
If this Court wants to achieve a drastic and immediate reduction of
the number of asbestos personal injury cases crowding the state's dockets,
simply apply lex loci delicti and send the thousands of cases improperly
filed here back to their correct jurisdictions. Also, due to the fact
that the directives provided to the trial court in State ex rel. Allman v. MacQueen, 209 W.Va. 726, 551 S.E.2d
369 (2001), have not been fully implemented, I do not think we should have
expressed observations and cautionary concerns for the trial court's
consideration and use. Instead, I would simply direct the trial court
to proceed to resolve this elephantine mass of litigation in as
efficient and effective manner as possible in accordance with the Allman
directives. Then, if the concerns noted by the majority arise, they can be
dealt with upon appeals taken from final orders.
I believe the majority opinion
correctly denied extraordinary relief at this juncture in the litigation.
However, in light of well-settled federal law, I fear that allowing every
plaintiff who wishes to litigate a claim in West Virginia, even though he
or she has no connection to this State, may violate the defendants' due process
Notwithstanding the foregoing,
there is another side to this issue which is equally thorny and troubling.
If this mass litigation is simply halted, clearly all the plaintiffs would
be denied their due process rights and their day in court. There should be
a simple answer that would guarantee everyone's due process rights, but I
cannot conceive or fashion one.
Accordingly, I concur in the final result.