On Monday, US District Court Judge John T. Copenhaver, Jr. dismissed, on Younger abstention grounds, a suit against the WV Supreme Court and two WV trial judges over the handling of asbestos mass litigation procedures in West Virginia.  The case, captioned Norfolk Southern Railway, et al. v. McGraw, et al. (Southern Dist of WV,  No. 2:01-1238), was filed as an "operational challenge" to the constitutionality of the West Virginia Trial Court Rule 26 governing mass litigation, and the WV Supreme Court's administration of those rules.  The railroads had argued that the WV Supreme Court did not provide an adequate opporunity for review of their federal constitutional claims.  Judge Copenhaver rejected this argument, noting that the railroads had failed to present any constitutional claims to the WV Supreme Court for review.

This ruling comes at a time when the US Supreme Court is considering a petition for writ of certiorari that challenges WV Trial Court Rule 26 and its administration.  (Here's a link [pdf] to the petition for certiorari filed by Mobil, et al., from this Court's decision in SER Mobil, et al. v. Gaughn, et al.) Yesterday, Mobil Corp. filed a motion for stay of the current trial schedule, pending the US Supreme Court's decision.  The WV Supreme Court has not yet ruled on the motion for stay.