West Virginia Record

Monday, February 24, 2020

Supreme Court says Mass Litigation Panel’s application of public policy exception was erroneous

By Kyla Asbury | Jun 28, 2017


CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that the Mass Litigation Panel’s application of the public policy exception was clearly erroneous in a case alleging exposure to coal combustion residuals from a landfill owned by American Electric Power Company.

The petitioners were seeking a writ of prohibition to prohibit the Mass Litigation Panel from enforcing its order denying a motion to dismiss 12 plaintiffs who alleged they suffered as a result of “take-home” exposure in the Coal Combustion Residuals mass litigation, according to the June 14 opinion.

Justice Beth Walker authored the majority opinion. Justice Menis Ketchum concurred and filed a separate opinion.

“Petitioners contend that the MLP’s determination that Ohio’s Mixed Dust Statute is contrary to West Virginia’s public policy was clearly erroneous and that the application of West Virginia substantive law to the NWDC plaintiffs’ claims violates petitioners’ due process rights.”

The Supreme Court granted the writ of prohibition and remanded the case for further proceedings.

The case was previously before the Supreme Court in State ex rel. AEP v. Nibert and, in that case, the petitioners filed a writ of prohibition challenging the circuit court’s denial of their motion to dismiss on the issue of forum non conveniens.

“We found that the circuit court did not abuse its discretion in refusing petitioner’s motion to dismiss, denied petitioners’ writ of prohibition and referred the case to the MLP,” Walker wrote.

Following that decision, the respondents filed an amended complaint joining the separate claims of 79 individual plaintiffs who alleged that they or their family members were injured by exposure to CCR generated at the General James M. Gavin Power Plant and disposed of at the associated Gavin Landfill.

On Dec. 12, the petitioners filed a petition for a writ of prohibition in the Supreme Court seeking to prohibit the MLP from enforcing its order denying its motion to dismiss the non-working direct claim plaintiffs. The respondents filed a response on Jan. 10. On Jan. 25, the Supreme Court issued a rule to show cause and set the matter for oral argument.

“While we determined in AEP I that the consideration of this state’s public interest weighed in favor of retention of the case in West Virginia courts, we did not decide whether West Virginia law would necessarily apply to any of the plaintiffs’ claims,” Walker wrote. “Critically, in the set of circumstances before us, none of the twelve NWDC plaintiffs were citizens or residents of West Virginia at the time of their alleged exposures, and none of their exposures occurred in this state.”

Walker wrote that although West Virginia has a strong public policy that persons injured by the negligence of another should be able to recover in tort, in this particular case, where the 12 plaintiffs lack a sufficient connection with the state of West Virginia, the Supreme Court is not strongly compelled to resist application of Ohio’s Mixed Dust Statute.

In his concurring opinion, Ketchum wrote that before this case proceeds any further, it should be determined if West Virginia courts have personal jurisdiction over the power companies for their alleged torts committed in Ohio.

“The power companies allegedly are not incorporated in West Virginia and do not have their principal place of business in West Virginia,” he wrote. “Further, the alleged torts and injuries did not occur in West Virginia. Therefore, under very recent United States Supreme Court cases, West Virginia’s courts may not have personal jurisdiction over the power companies.”

The United States Supreme Court has made it clear that the due process clause does not permit a state to haul an out-of-state corporation before its courts when the corporation is not “at home” in the state; and the episode-in-suit occurred out of state.

“In the instant case, it appears the issue of personal jurisdiction has not been explored,” he wrote. “In my opinion, personal jurisdiction should be determined before this case proceeds any further. Nevertheless, I agree with the majority opinion on the limited issue raised in this case.”

The state, by American Electric Power Co. Inc, American Electric Power Service Corporation, Ohio Power Company and Doug Workman are represented by James W. Turner, Ancil G. Ramey and Jessica L. Wiley of Steptoe & Johnson.

The respondents are represented by Christopher J. Regan, J. Zachary Zatezalo and Laura P. Pollard of Bordas & Bordas; and L. David Duffield and Chad S. Lovejoy of Duffield, Lovejoy, Stemple & Boggs.

W.Va. Supreme Court of Appeals case number: 16-1148

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Organizations in this Story

Steptoe and Johnson LLPBordas & Bordas PLLCDuffield, Lovejoy, Stemple & Boggs PLLCWest Virginia Supreme Court of Appeals