Gary S. Wigal
Gianola, Barnum & Wigal, L.C.
Morgantown, West Virginia
Attorney for the Petitioners
Attorneys for the Respondents:
| Anita R. Casey Cynthia Majestro MacCorkle, Lavender & Casey Charleston, West Virginia Attorney for the Respondent, Patch Rubber Company Erik K. Falk Paul W. Roop, II Michael M. Fisher William Geiger Glen A. Murphy |
L. John Argento Dickie, McCamey & Chilcote Pittsburgh, Pennsylvania Attorney for the Respondent, Lewis Goetz & Company, Inc. d/b/a Gooding Rubber Company Shawn P. George Harold S. Albertson, Jr. Concetta A. Silvaggio Richard L. Lancianese
|
| John R. Fowler Huddleston, Bolen, Beatty, Porter & Copen Charleston, West Virginia Attorney for the Respondent, Raleigh Mine & Industrial Supply, Inc. Phillip J. Tissue Landers P. Bonenberger Eric M. James Jeffrey H. Hall M. Shane Harvey
|
Timothy M. Miller Robinson & McElwee, L.L.P. Charleston, West Virginia Attorney for the Respondent, Eastern Associated Coal Corporation Edgar A. Poe, Jr. Chip Williams
|
CHIEF JUSTICE DAVIS, deeming herself disqualified, did not participate in
the decision in this case.
1. “'Prohibition lies only to restrain inferior
courts from proceeding in causes over which they have no jurisdiction, or,
in which, having jurisdiction, they are exceeding their legitimate powers
and may not be used as a substitute for writ of error, appeal or certiorari.'
Syl. pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).”
Syl. Pt. 2, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984).
2. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
3. “'“A writ of prohibition will not issue
to prevent a simple abuse of discretion by a trial court. It will only issue
where the trial court has no jurisdiction or having such jurisdiction exceeds
its legitimate powers. W.Va.Code, 53-1-1.” Syl. pt. 2, State
ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).' Syl.
pt. 2, State ex rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994).”
Syl. Pt. 1, State ex rel. United Hosp. Center, Inc. v. Bedell, 199 W.Va.
316, 484 S.E.2d 199 (1997).
4. “A writ of prohibition is available to correct
a clear legal error resulting from a trial court's substantial abuse of its
discretion in regard to discovery orders.” Syl. Pt. 1, State Farm
Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).
5. “A trial court is permitted broad discretion
in the control and management of discovery, and it is only for an abuse of
discretion amounting to an injustice that we will interfere with the exercise
of that discretion. A trial court abuses its discretion when its rulings on
discovery motions are clearly against the logic of the circumstances then
before the court and so arbitrary and unreasonable as to shock our sense of
justice and to indicate a lack of careful consideration.” Syl. Pt. 1,
B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463, 475 S.E.2d
555 (1996).
6. “A trial court, pursuant to provisions of
[West Virginia Rules of Civil Procedure Rule] 42, has a wide discretionary
power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil
actions for a joint hearing or trial will not be reversed in the absence of
a clear showing of abuse of such discretion and in the absence of a clear
showing of prejudice to any one or more of the parties to the civil actions
which have been so consolidated.” Syl. Pt. 1, Holland v. Joyce,
155 W.Va. 535, 185 S.E.2d 505 (1971).
7. “A party seeking to petition this Court
for an extraordinary writ based upon a non-appealable interlocutory decision
of a trial court, must request the trial court set out in an order findings
of fact and conclusions of law that support and form the basis of its decision.
In making the request to the trial court, counsel must inform the trial court
specifically that the request is being made because counsel intends to seek
an extraordinary writ to challenge the court's ruling. When such a request
is made, trial courts are obligated to enter an order containing findings
of fact and conclusions of law. Absent a request by the complaining party,
a trial court is under no duty to set out findings of fact and conclusions
of law in non-appealable interlocutory orders.” Syl. Pt. 6, State
ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75 (1998).
8. “'The trial court, when exercising its discretion
in deciding consolidation issues under West Virginia Rules of Civil Procedure
42(a), should consider the following factors: (1) whether the risks of prejudice
and possible confusion outweigh the considerations of judicial dispatch and
economy; (2) what the burden would be on the parties, witnesses, and available judicial resources posed by multiple lawsuits; (3) the length
of time required to conclude multiple lawsuits as compared to the time required
to conclude a single lawsuit; and (4) the relative expense to all concerned
of the single-trial, multiple-trial alternatives. When the trial court concludes
in the exercise of its discretion whether to grant or deny consolidation,
it should set forth in its order granting or denying consolidation sufficient
grounds to establish for review why consolidation would or would not promote
judicial economy and convenience of the parties, and avoid prejudice and confusion.'
Syllabus Point 2, State ex rel. Appalachian Power Co. v. Ranson, 190
W.Va. 429, 438 S.E.2d 609 (1993).” Syl. Pt. 1, State ex rel. Appalachian
Power Co. v. MacQueen, 198 W. Va. 1, 479 S.E.2d 300 (1996).
9. “'Trial courts have the inherent power to
manage their judicial affairs that arise during proceedings in their courts,
which includes the right to manage their trial docket.' Syllabus Point 2,
B.F. Specialty Co. v. Sledd, 197 W.Va. 463, 475 S.E.2d 555 (1996).”
Syl. Pt. 2, State ex rel. Appalachian Power Co. v. MacQueen, 198 W.
Va. 1, 479 S.E.2d 300 (1996).
10. “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).
11. “West Virginia jurisprudence favors the
consideration, in a unitary trial, of all claims regarding liability and damages
arising out of the same transaction, occurrence or nucleus of operative facts,
and the joinder in such trial of all parties who may be responsible for the
relief that is sought in the litigation.” Syl. Pt. 4, Sheetz,
Inc. v. Bowles Rice McDavid Graff & Love, PLLC, 209 W. Va. 318,
547 S.E.2d 256 (2001).
Per Curiam:
The Petitioners, as plaintiffs
(See footnote 1) in consolidated chemical
exposure cases, seek a writ of mandamus requiring the Circuit Court of Raleigh
County to make findings of fact and conclusions of law in support of its discovery
management plan. The Petitioners further seek a writ of prohibition requiring
the lower court to vacate the portion of its discovery management plan which
consolidates twenty-three cases for discovery purposes. Having thoroughly
evaluated the record, briefs, and arguments of counsel, we find that the lower
court's findings of fact and conclusions of law provide sufficient basis for
consideration by this Court. We therefore refuse the Petitioners' request
for a writ of mandamus requiring additional findings of fact and conclusions
of law.
With regard to the discovery management plan and
the consolidation of the twenty-three cases for discovery purposes in reverse
bifurcation fashion, we grant the requested writ of prohibition, as moulded,
with express directions as stated herein.
Particularly relevant to the present inquiry, this Court
in Crafton also strongly cautioned the lower court that, in its de
novo review on remand, the benefits and detriments of the reverse bifurcation
methodology should be carefully weighed. Specifically, this Court stated as
follows:
In the instant case, the plaintiffs
sought to be relieved of the effect of their initial counsel having stipulated,
due to his undisputed inexperience and ignorance, to a trial procedure that
is contrary to that which is enjoyed by essentially all other ordinary civil
litigants in West Virginia. Moreover, the economy and fairness of the sort of
procedure that was agreed to by the plaintiffs' initial counsel is the subject
of serious dispute.
In light of the foregoing principles,
we conclude that the plaintiffs should have been allowed to withdraw their consent
to the reverse bifurcation procedure, and that the circuit court abused its
discretion in failing to allow them to do so. On the limited record before us,
we cannot rule on the issue of whether, absent the consent of the plaintiffs
to “reverse bifurcation,” the circuit court should adopt that procedure.
The issue of possible reverse bifurcation should be addressed by the circuit
court de novo, making any record that may be necessary, without giving
any effect to the plaintiffs' previous stipulation to the procedure.
Id. at 78-79, 528 S.E.2d at 772-73 (footnotes omitted). In footnote four
of Crafton, this Court discussed the fact that the methodology of reverse
bifurcation has not been the traditional practice of litigants in this State,
noting that “[o]ur historic preference for unitary trials is clear in our
jurisprudence.” Id. at 78 n. 4, 528 S.E.2d at 772 n. 4. In explaining
that reverse bifurcation has not been universally embraced, this Court cited
Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238 (Utah 1998), in which
the Utah court declared that reverse bifurcation is rare and “drastic”
technique. Crafton, 207 W. Va. at 79 n. 5, 528 S.E.2d at 773
n. 5 (quoting Walker Drug, 972 P.2d at 1245). In Crafton, this
Court also directed the lower court's attention to the following authorities
on the issue of the legitimacy of the reverse bifurcation method:
See generally Roger H. Transgrud, “Joinder
Alternatives in Mass Tort Litigation,” 70 Cornell L.Rev. 779,
827-29 (1985). See also Sandra A. Smith, “Polyfurcation and the
Right to a Civil Jury Trial: Little Grace in the Woburn Case,” 25 Boston
College Env.Aff.L.Rev. 649, 685 (1998) (focusing on the lawsuit that underlies
the book and movie, “A Civil Action” and discussing how inappropriate
“polyfurcation” can be “particularly harmful to injured parties”
in the toxic tort context). See also J.M. Granholm and William J. Richards,
“Bifurcated Justice: How Trial-Splitting Devices Defeat the Jury's Role,”
26 U.Toledo L.Rev. 505 (1995).
Id. at 79 n. 5, 528 S.E.2d at 773 n. 5. This Court's statements in
Crafton were very detailed regarding the fact that this case had not
been referred by the lower court to the Mass Litigation Panel, pursuant to
Trial Court Rule 26.01(b)(1). This Court reasoned:
Many of the factors that have been suggested as supporting
a reverse bifurcated trial procedure, such as clearly established liability
that would make a second phase of the trial unlikely, demonstrated absence
of prejudice to the plaintiffs, lack of duplicative witnesses, and a great
number of plaintiffs or defendants _ are not present in the instant case.
Id. at 79 n. 5, 528 S.E.2d at 773 n. 5.
On remand from the directives of this Court in Crafton,
the lower court entered an order stating that the cases of the original nine
plaintiffs would be consolidated with the additional fourteen plaintiffs for discovery purposes and that discovery
would be conducted through the process of reverse bifurcation, with damages
and causation considered prior to issues of liability.
(See footnote 3) The Petitioners now bring
this writ of mandamus seeking findings of fact and conclusions of law and
writ of prohibition seeking to prevent the consolidation of all twenty-three
plaintiffs for discovery purposes.
The Petitioners raise issues concerning discovery rulings
and the consolidation of cases under Rule 42 of the West Virginia Rules of Civil
Procedure. (See
footnote 4) With respect to a trial court's ruling on discovery
matters, we have held that the following abuse of discretion standard of review
should be applied:
A trial court is permitted broad
discretion in the control and management of discovery, and it is only for an
abuse of discretion amounting to an injustice that we will interfere with the
exercise of that discretion. A trial court abuses its discretion when its rulings
on discovery motions are clearly against the logic of the circumstances then
before the court and so arbitrary and unreasonable as to shock our sense of
justice and to indicate a lack of careful consideration.
Syl. Pt. 1, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463,
475 S.E.2d 555 (1996).
With regard to the lower court's decision to consolidate the twenty-three civil actions, an abuse of discretion standard of review will also be utilized, explained as follows in syllabus point one of Holland v. Joyce, 155 W.Va. 535, 185 S.E.2d 505 (1971):
A trial court, pursuant to provisions
of [West Virginia Rules of Civil Procedure Rule] 42, has a wide discretionary
power to consolidate civil actions for joint hearing or trial and the action
of a trial court in consolidating civil actions for a joint hearing or trial
will not be reversed in the absence of a clear showing of abuse of such discretion
and in the absence of a clear showing of prejudice to any one or more of the
parties to the civil actions which have been so consolidated.
In denying the Petitioners' Motion to Reconsider
on July 17, 2001, the lower court examined the argument that the original
nine cases would suffer a disadvantage if they had to await the development
of the later cases. The lower court stated: “However, the factual commonality
among all twenty three cases is such that the advantages of addressing all
cases together outweighs the detriment that might be suffered by the parties
who filed earlier.”
Based upon our review of the findings of fact and
conclusions of law presented by the lower court, we believe that the lower
court provided a basis for its decisions in sufficient detail to permit review
by this Court. We consequently deny the requested writ of mandamus and proceed
to review the lower court's consolidation and discovery management plan.
The Respondents assert that because all twenty-three
cases arise from the same type of chemical exposure, consolidation for discovery
purposes was appropriate under the discretionary policies of Rule 16 of the
West Virginia Rules of Civil Procedure
(See footnote 7) and State ex rel. Appalachian
Power Co. v. MacQueen, 198 W. Va. 1, 479 S.E.2d 300 (1996). Syllabus point
one of Appalachian Power v. MacQueen provides as follows:
“The trial court, when
exercising its discretion in deciding consolidation issues under West Virginia
Rules of Civil Procedure 42(a), should consider the following factors: (1)
whether the risks of prejudice and possible confusion outweigh the considerations
of judicial dispatch and economy; (2) what the burden would be on the parties,
witnesses, and available judicial resources posed by multiple lawsuits; (3)
the length of time required to conclude multiple lawsuits as compared to the
time required to conclude a single lawsuit; and (4) the relative expense to all concerned of the single-trial, multiple-trial alternatives.
When the trial court concludes in the exercise of its discretion whether to
grant or deny consolidation, it should set forth in its order granting or
denying consolidation sufficient grounds to establish for review why consolidation
would or would not promote judicial economy and convenience of the parties,
and avoid prejudice and confusion.” Syllabus Point 2, State ex rel.
Appalachian Power Co. v. Ranson, 190 W.Va. 429, 438 S.E.2d 609 (1993).
Syllabus point two of Appalachian Power v. MacQueen provides: “'Trial
courts have the inherent power to manage their judicial affairs that arise
during proceedings in their courts, which includes the right to manage their
trial docket.' Syllabus Point 2, B.F. Specialty Co. v. Sledd, 197 W.Va.
463, 475 S.E.2d 555 (1996).” Syllabus point three of Appalachian Power
v. MacQueen provides: “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.” Consequently, the Respondents contend that the inherent
power of the trial court was properly exercised in consolidation of the twenty-three
cases and that the plan does not violate the procedural due process rights
of the parties.
Upon our review of the record, arguments of counsel,
and the factors enumerated in Appalachian Power v. MacQueen, we conclude
that the consolidation of the twenty-three cases constitutes an abuse of discretion
for which issuance of a writ of prohibition is the only effective remedy.
The delay in resolution of the original nine plaintiffs' cases, while awaiting the completion of causation and damages discovery for the second group of
litigants, imposes a significant burden upon the parties and witnesses. Additionally,
comparing the time required to conclude multiple lawsuits to that required
to conclude a unitary trial of the first nine,
(See footnote 8) it appears that consolidation
for discovery purposes is not an appropriate means to efficiently manage the
lower court's docket and provide prompt resolution for the parties.
(See footnote 9)
In arriving at this conclusion, this Court has carefully
reviewed the lower court's order requiring utilization of the reverse bifurcation
method in discovery. We have also considered the effect of our directive that
consolidation is inappropriate and that the original nine cases should proceed
forthwith. We are not persuaded that the benefits of reverse bifurcation which
the lower court identified survive under that scenario. We believe, in fact,
that the orderly trial of the original nine cases and the discovery necessary
to that trial, with respect to issues of liability, causation, and damages,
compels the conclusion that trials of both the original nine and the subsequent
fourteen should proceed along traditional lines. We therefore prohibit continued
use of reverse bifurcation in this case.
(See footnote 12)
Consequently, we grant the requested writ of prohibition
as moulded and remand this matter with the following instructions: (1) Preparation
for trial of the first nine cases should be permitted to proceed forthwith.
In particular, the parties are to be permitted to conduct such lawful discovery
regarding liability as may be required and to conclude the causation and damages
discovery therein with all deliberate speed. Those nine cases are to be tried,
if at all, after the hearing of such dispositive motions as may be presented,
in a single unitary trial. (2) As to the remaining fourteen cases, the requirement
of reverse bifurcation for discovery purposes shall be set aside, and the
cases shall be prepared for a traditional, unitary trial, with discovery of
all issues, whether on liability, causation, damages, to commence within a
reasonable time after discovery is completed in the original nine cases. We
understood from the Petitioners' oral argument that causation and damages
discovery for the fourteen plaintiffs could conveniently begin within six or seven months
after our decision herein. We also note that it is likely that substantial
discovery completed on the issue of liability for the initial nine cases may
be useful and appropriate to one or more of the later fourteen cases.
Writ
of Mandamus denied.
Writ
of Prohibition granted, as moulded.
“Reverse bifurcation”
is the inevitable obfuscatory jargon coined by lawyers and judges to describe
the trial of a case where damages are established first and liability second.
. . . The process deserves consideration if a short damages trial and a lengthy
liability trial is predicted. . . . I suspect the process is appropriate only
for a fairly narrow category of cases.
207 W. Va. at 76 n. 1, 528 S.E.2d at 770 n. 1 (quoting In re Report of the
Advisory Group for the United States District Court, 1993 WL 30497 at *52-54
(D. Me. Feb. 1, 1993)).
(a) Consolidation of actions in same court. _ When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. An action is pending before the court within the meaning of this subdivision if it is pending before the court on an appeal from a magistrate.
West Virginia jurisprudence
favors the consideration, in a unitary trial, of all claims regarding liability
and damages arising out of the same transaction, occurrence or nucleus of operative facts, and
the joinder in such trial of all parties who may be responsible for the relief
that is sought in the litigation.
Sheetz found a law firm's contribution claim against out-of-state counsel
could proceed based upon that unitary trial principle. Id. at 333, 547 S.E.2d
at 271.
While bifurcation of trial
on the issues of liability and damages is perhaps the most common application
of rule 42(b), see 9 C. Wright & A. Miller, Federal Practice and Procedure
§ 2390, at 502 (2d ed.1995), reverse bifurcation is much less common
and has been used only rarely in complex asbestos-related litigation. See,
e.g., Campolongo v. Celotex Corp., 681 F.Supp. 261, 262 (D.N.J.1988) (suggesting
that reverse bifurcation is an “extraordinary” case management technique
necessitated by the magnitude of the asbestos caseload). To our knowledge,
so drastic a technique has never been employed in Utah.
Id. at 1245 n. 7. In Angelo v. Armstrong World Indus., Inc., 11 F.3d 957 (10th
Cir. 1993), however, the process of reverse bifurcation was approved in an
asbestos case where the procedure would save time and money and would not
prevent the plaintiffs from developing a history of their exposure to the
defendant's product. Id. at 964-65.