CHARLESTON – The state Supreme Court has ruled the state Attorney General’s office can file an amended complaint in a 2003 case involving faulty respirators and dust masks.
The Justices, in a November 23 opinion, denied a petition for a writ of prohibition filed by the three defendants in the case: 3M Company, Mine Safety Appliances Company and American Optical Corporation.
In 2016, Attorney General Patrick Morrisey’s office filed a motion asking Lincoln Circuit Judge Jay Hoke to allow it to amend the complaint and seeking an order severing the Consumer Credit and Protection Act cause of action from the causes of action for trial.
Judge Jay Hoke
The AG’s office, then under Darrell McGraw, filed the original complaint in 2003 and an amended complaint in 2005. The allegations in the amended complaint are the same as the ones in the original complaint: that the defendants designed, manufactured and delivered respirators and dust masks that did not protect workers from dust-related illnesses.
The complaint asserted six causes of action: negligence, strict liability, breach of implied warranty, negligent misrepresentation, punitive damages and a violation of the CCPA.
Since the amended complaint was filed in 2005, little progress has been made in the case because of “problems with production of discovery.” The AG’s office claimed the state has “spent hundreds of millions of dollars” in the past and will in the future on workers’ compensation benefits for tens of thousands of workers with occupational pneumoconiosis such as black lung and silicosis, and the AG’s office sought recovery of that money.
In response, the defendants asked for information about each of those injured workers, their employers, the instructions received by each injured worker about the respirators, the facial hair the workers wore each time they used a mask and even tobacco use by each worker.
When Morrisey’s office filed the 2016 motion to sever the CCPA cause of action from the others, the rationale was that the CCPA sought a remedy different from “and vastly less complicated than” the other five remedies. The AG’s office said such a move would “greatly simplify the case” and eliminate irrelevant discovery issues.
According to the AG’s office, the trial questions would be if the products were sold in West Virginia, the number of sales in the state, whether misrepresentations about the products were made by the defendants, whether those violated the CCPA and the level of civil penalty to be imposed for each sale.
The defendants said the motion was “yet another attempt to avoid answering defendants’ discovery requests.” They also said allowing the AG to amend the CCPA claims would be “futile” because those claims are barred by a four-year statute of limitations.
On October 28, 2019, Hoke granted the AG’s motion to amend the complaint and to sever the CCPA claim from the others to “serve the dual purpose of avoiding delay and promoting judicial economy because it will allow the case to proceed to trial expeditiously by dispensing with certain discovery issues concerning the state’s common law claims.”
On January 6, 2020, the defendants filed the petition with the Supreme Court seeking a writ of prohibition to halt the enforcement of Hoke’s order.
Justice John Hutchison wrote the opinion of the court. Justice Evan Jenkins wrote a concurring opinion, which also was signed by Chief Justice Tim Armstead.
“This court has ‘clearly stated that extraordinary remedies (like the writ of prohibition) are reserved for really extraordinary causes’ and ‘are not available in routine circumstances,’” Hutchison wrote. “The circuit court’s order is preliminary, and merely permits the parties to conduct discovery and raise detailed arguments on a developed record at the summary judgment stage.
“We see nothing to say the circuit court erred as a matter of law, let alone exceeded its legitimate powers. Accordingly, we deny the defendants’ petition for a writ of prohibition.”
Hutchison concludes the 28-page opinion by saying the Justices saw no error in Hoke’s interpretation of the CCPA.
“The circuit court’s … order does nothing more than allow a routine amendment to the Attorney General’s complaint and a routine severance of issues for discovery and trial,” he wrote. “We see nothing in the order to compel the conclusion that the trial court has no jurisdiction or, having such jurisdiction, exceeded its legitimate powers.”
In the concurring opinion, Jenkins writes that the discovery rule can be applied to toll the statute of limitations. But, he says he wrote a separate opinion “to caution against tolling the statute of limitations in all cases involving the CCPA.”
“Our decision should not be seen as a ‘blanket’ discovery rule for all future CCPA cases – especially when the Legislature did not expressly provide for tolling in the drafting of the CCPA,” Jenkins writes. “No civil penalty may be imposed for violations of the CCPA occurring more than four years before the action was brought.”
But, Jenkins notes the majority opinion’s adoption of Hoke’s reasoning that because there is no statutory prohibition on the application of the discovery rule, the discovery rule may be applied.
“There is evidence in this matter that the petitioners ‘fraudulently concealed facts which prevented the (state) from discovering or pursuing the potential causes of action’ under the CCPA – evidence that also would support tolling the statute of limitations.”
He concludes his concurring opinion by again stressing he agrees with the decision to allow the parties to develop evidence and present it anew as well as that the discovery rule can be applied to CCPA cases involving fraud.
“However, I do caution future litigants against blindly assuming that the discovery rule will be applied to all CCPA claims – it is the exception, not the rule,” Jenkins writes.
The AG’s office was represented by Deputy AG Curtis Capehart as well as Sean McGinley of DiPiero Simmons McGinley & Bastress in Charleston. 3M was represented by Bryan J. Spann and Robert H. Akers of Thomas Combs & Spann in Charleston as well as Andrew J. Detherage of Barnes & Detherage in Minneapolis. American Optical was represented by Marc Williams and Melissa Foster Bird of Nelson Mullins in Huntington. Mine Safety Appliances was represented by M. Trent Spurlock and J.H. Mahaney of Dinsmore & Shohl.
West Virginia Supreme Court of Appeals case number 20-0014 (Lincoln Circuit Court case number 03-C-109)
