2. “General supervisory control over all intermediate appellate, circuit, and magistrate courts resides in the Supreme Court of Appeals. W.Va. Const., art. VIII, § 3.” Syllabus Point 1, Carter v. Taylor, 180 W.Va. 570, 378 S.E.2d 291 (1989).
3. “'A
court “has inherent power to do all things that are reasonably necessary
for the administration of justice within the scope of its jurisdiction.” 14
Am. Juris., Courts, section 171.' Syllabus Point 3, Shields v. Romine,
122 W.Va. 639, 13 S.E.2d 16 (1940).” Syllabus Point 1, State ex rel.
Rees v. Hatcher, 214 W.Va. 746, 591 S.E.2d 304 (2003).
Per Curiam:
This
proceeding involves appellants, Franklin Stump, Danny Gunnoe, and Teddy Joe
Hoosier, along with others (hereinafter, the “Intervenors”) who appeal
the Circuit Court of Marshall County's January 15, 2004, denial of their motion
to intervene in a class action (hereinafter, the “Stern litigation”)
for medical monitoring for asymptomatic coal preparation plant workers arising
out of the alleged chemical exposure to an industrial water cleaner. Subsequent
to the Intervenors' appeal to this Court, the class in which the Intervenors
sought intervention was decertified by this Court's decision in State ex
rel. Chemtall, Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004). The
Intervenors (See footnote
1) are also the plaintiffs in a civil action currently pending
in the Circuit Court of Boone County styled Denver and Debra Pettry, et
al., v. Peabody Holding Company, et al., Case No. 02-C-58 (hereinafter “the Pettry litigation”),
wherein they are seeking medical monitoring relief against some of the same
defendants in the Stern litigation.
During
the consideration of this appeal, a petition for a writ of mandamus and/or prohibition
styled State ex rel. CIBA Speciality Chemical Corporation, et al. v. The Honorable
E. Lee Schlaegel, Judge of the Circuit Court of Boone County, et al. and
assigned Case No. 042100 was filed in this Court by several of the defendants
in the Pettry litigation. The petitioners therein sought to compel the
Circuit Court of Boone County to transfer and consolidate the Stern litigation
with the Pettry litigation pursuant to Rule 42(b) of the West Virginia
Rules of Civil Procedure. (See
footnote 2) While we had not issued a Rule to Show Cause in Case
No. 042100, we allowed the parties to argue the consolidation issue during oral
argument of the Stern appeal because of the interrelatedness of the two
matters.
Based
upon the parties' briefs and arguments in this proceeding as well as the pertinent
authorities, the Circuit Court of Marshall County's January 15, 2004,
order is reversed to the extent it is inconsistent with this opinion. Moreover,
given our reversal of the Circuit Court of Marshall County's order in the Stern litigation,
we find that the issues raised in the petition for an extraordinary writ filed
by the Pettry defendants are moot. Accordingly, we decline to issue a
Rule to Show Cause in that matter.
On September
26, 2003, the Circuit Court of Marshall County certified the Stern case
as a class action, with a broadly defined class that included the Intervenors
and the entire putative class from the Pettry case as well as coal preparation
plant workers in West Virginia, Virginia, Illinois, Indiana, Pennsylvania, Ohio,
and Tennessee. Following the class certification in Stern, on October
28, 2003, Intervenors Stump and Gunnoe moved to intervene on behalf of themselves
and others similarly situated claiming that they had a right to intervene as
class members whose interests were not adequately protected by the representative
plaintiffs. In addition, Intervenor Hoosier moved to intervene on behalf of water
treatment workers with similar medical monitoring claims based upon exposure
to the same chemical to prevent the duplication of effort and potential inconsistent
results that would necessarily occur following uncoordinated simultaneous prosecution
of overlapping class actions.
On January
15, 2004, the Circuit Court of Marshall County denied the Intervenors' motion
to intervene. The circuit court stated that under Rule 24(b) of the West Virginia
Rules of Civil Procedure, the intervention sought was permissive and should not
be allowed because such intervention would unduly delay the adjudication of the
rights of the original parties. The circuit court also found with regard to Intervenor
Hoosier and the water treatment workers, that they did not have a substantial
interest in the Stern litigation.
On June
24, 2004, we granted the Intervenors' petition for appeal to this Court of the
Circuit Court of Marshall County's January 15, 2004, denial of their motion to
intervene. On December 2, 2004, this Court in State ex rel. Chemtall, Inc.
v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004), decertified the class in Stern in
which the Intervenors seek to participate. Moreover, following a separate action
filed by several of the defendants involved in the Pettry litigation,
on June 17, 2004, the Circuit Court of Boone County denied the defendants' motion
to transfer and consolidate the Stern litigation with the Pettry litigation.
On November 5, 2004, the Pettry defendants then filed in this Court the
petition for a writ of mandamus and/or prohibition in Case No. 042100 seeking
to compel the Circuit Court of Boone County to transfer and consolidate
the Stern litigation with the Pettry litigation pursuant to Rule
42(b) of the West Virginia Rules of Civil Procedure.
The subject
of the appeal before this Court is the January 15, 2004, denial of the Intervenors'
motion to intervene by the Circuit Court of Marshall County. We are also called
upon to consider the petition for a writ of mandamus and/or prohibition filed
against the Circuit Court of Boone County in Case No. 042100.
“In
reviewing challenges to the findings and conclusions of the circuit court, we
apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review
the circuit court's underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syllabus point
2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d
167 (1997).
Also,
as discussed above, we have considered the issue raised in the petition for a
writ of mandamus and/or prohibition filed by the Pettry defendants. Since
the petition seeks to have this Court enter an order directing the circuit court
to grant various types of relief, we will treat it as a petition for a writ of
mandamus seeking to compel the Circuit Court of Boone County to act accordingly.
We have stated that a de novo standard of review applies to a circuit
court's decision to grant or deny a writ of mandamus. McComas v. Board of
Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996).
This Court has also held that:
A
writ of mandamus will not issue unless three elements coexist_(1) a clear legal
right in the petitioner to the relief sought; (2) a legal duty on the part of
respondent to do the thing which the petitioner seeks to compel; and (3) the
absence of another adequate remedy.
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va.
538, 170 S.E.2d 367 (1969). Accord, Syllabus Point 5, Phillip Leon
M. v. Greenbrier County Board of Education, 199 W.Va. 400, 484 S.E.2d 909
(1996), modified in part, Cathe A. v. Doddridge County Bd. of Educ.,
200 W.Va. 521, 490 S.E.2d 340 (1997); Syllabus Point 2, State ex rel. Blankenship
v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996); Syllabus Point 1, Hickman
v. Epstein, 192 W.Va. 42, 450 S.E.2d 406 (1994); Syllabus Point 1, State
ex rel. McGraw v. West Virginia Ethics Com'n, 200 W.Va. 723, 490 S.E.2d
812 (1997). Thus, with these standards in mind, we consider the parties' arguments.
West
Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an
action if an applicant meets four conditions: (1) the application must be timely;
(2) the applicant must claim an interest relating to the property or transaction
which is the subject of the action; (3) disposition of the action may, as a practical
matter, impair or impede the applicant's ability to protect that interest; and
(4) the applicant must show that the interest will not be adequately represented
by existing parties.
The Intervenors
contend that their motion was timely filed and that although courts have denied
intervention following class certification, there is no requirement that a motion
to intervene must precede certification. Moreover, the Intervenors state that
their need to protect their interests through intervention did not arise in Stern until
the class was certified with respect to the same claims that were being litigated
in the Pettry litigation. The Intervenors further declare that their interest
relates to the subject of the action and is substantial because each class member's
right to medical monitoring is definable, protectable, and specific.
Additionally,
the Intervenors point out that they will be bound by any judgment disposing of
the Stern litigation unless it is determined upon collateral review that
the representation was not adequate. The Intervenors also say that their interests
will not be adequately represented by the existing Stern plaintiffs who
have conceded that those who have suffered no manifest injury are not eligible
to represent a class of persons who allegedly
suffered injury. Thus, the Intervenors argue that the interests of class members
such as Intervenor Stump are not adequately represented as Stump and those
similarly situated, who have already sustained physical injury attributable
to chemical exposure, are likely to warrant different treatment at the remedial
stages of the litigation.
The Intervenors
also argue that even if this Court determines that they do not have a right to
intervene under W.Va.R.Civ.Pro. Rule 24(a), then they should be permitted to
intervene under W.Va.R.Civ.Pro. Rule 24(b) which provides:
Upon
timely application anyone may be permitted to intervene in an action: (1) when
a statute of this State confers a conditional right to intervene; or (2) when
an applicant's claim or defense and the main action have a question of law or
fact in common. When a party to an action relies for ground of claim or defense
upon any statute or executive order administered by a federal or State governmental
officer or agency or upon any regulation, order, requirement, or agreement issued
or made pursuant to the statute or executive order, the officer or agency upon
timely application may be permitted to intervene in the action. In exercising
its discretion the court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties.
The Intervenors
contend that they have been parties to the Pettry action which was filed
nearly one year prior to the Stern litigation, and that intervention is
necessary to avoid duplicative litigation as both actions should be combined
and managed by one court. The Intervenors say that almost every question raised
by their claims is in common with the
claims of the class in the Stern litigation. The Intervenors further
argue that the objections by the Stern litigants are founded upon a
misconception as to the nature of their proposed complaint. Thus, the Intervenors
maintain that intervention will allow them to argue the same theories based
upon the same facts and law to currently unrepresented or inadequately represented
persons in the Stern litigation.
Conversely,
Stern argues that the Intervenors do not satisfy the four requirements of intervention
of right set forth in Rule 24(a). Initially, Stern says that Intervenors Stump
and Gunnoe are symptomatic for certain injuries and seek individual damages from
their exposure to 114 different chemicals, only one of which is the chemical
involved in the Stern litigation. Moreover, Stern maintains that Intervenor
Hoosier is not currently named as a plaintiff in any civil action regarding chemical
exposure nor does he meet the class definition of the class formerly certified
in Stern. (See footnote
3) Additionally, Stern contends that the Intervenors have no “direct
and substantial interest” in the Stern litigation as they have their
own civil action in which they can seek damages including medical monitoring.
Stern
declares that the disposition of the Stern litigation will neither impair
nor impede Intervenor Stump or Gunnoe's ability to protect their interests as
they have not
demonstrated how they might be disadvantaged by the disposition in the Stern litigation.
Stern further avers that even if the Intervenors could show that they would
be disadvantaged, intervention should still be denied because the interests
of the parties in the Stern litigation will be prejudiced by their intervention.
Stern argues that the Intervenors are adequately represented by the Pettry litigation
in Boone County.
Stern
further asserts that the Intervenors are not entitled to permissive intervention
because none of them can satisfy Rule 24(b) of the West Virginia Rules of Civil
Procedure. Stern says that intervention would cause the scope of the Stern action
to become broadened. Stern also contends that the intervention by Intervenor
Hoosier would create a wholly new and unrelated action for water treatment workers,
which will greatly expand the scope of the class of asymptomatic coal preparation
plant workers formerly certified in the Stern litigation. According to
Stern, such unwarranted expansion of the class would subject the parties in Stern to
substantial prejudice as the Stern plaintiffs would have to determine
how to prove liability for two sets of incongruous classes while simultaneously
having to maintain the commonality and typicality required of class actions under
Rule 23. Stern argues that the claims of Intervenor Hoosier involve a different
industry, products, exposures, and defendants.
Additionally,
Chemtall and Ondeo maintain that the fact that no class presently exists in the Stern action
is not a technicality and that the Intervenors' motion to intervene has been
rendered moot by this Court's decision to decertify the Stern class in State
ex rel. Chemtall, Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004). Chemtall
also contends that transfer and consolidation with the Pettry action is
not a viable alternative and no longer appropriate given the lapse of time. Chemtall
argues that the Pettry litigation has remained effectively dormant for
two years and eight months, while the Stern litigation has proceeded at
astonishing speed with dozens of depositions taken, hundreds of requests for
admissions and interrogatories answered, and tens of thousands of documents produced.
Moreover,
CIBA argues that transfer of the Stern litigation from the Circuit Court
of Marshall County to the Circuit Court of Boone County under Rule 42(b) of the
West Virginia Rules of Civil Procedure is the superior procedure over the intervention
sought by the Intervenors. (See
footnote 4) W.Va.R.Civ.Pro. Rule 42(b) provides:
When
two or more actions arising out of the same transaction or occurrence are pending
before different courts or before a court and a magistrate, the court in which
the first such action was commenced shall order all the actions transferred to
it or any other court in which any such action is pending. The court to which
the actions are transferred may order a joint hearing or trial of any or all
of the matters in issue in any of the actions; it may order all the actions consolidated;
and it may
make such other orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay. Whenever one of the actions is pending before a
magistrate and a judgment is rendered by the magistrate for $15.00 or less,
such judgment of the magistrate shall in no manner affect the other action
pending in the court; the doctrine of res judicata shall not apply to such
judgment, nor shall any such judgment of the magistrate be admissible in evidence
in the trial of the other action pending in the court.
The Stern litigants,
however, argue against transfer and consolidation of both actions stating that
the Stern and Pettry actions are significantly different in both
scope and intent. Stern maintains that Pettry involves a limited class
of West Virginia residents seeking monetary damage awards for individual injuries
from chemicals used in and around a limited number of coal preparation plants
in West Virginia, while Stern involves a class of asymptomatic coal preparation
plant workers who worked in all parts of West Virginia or one of six other states
seeking injunctive relief for exposure to acrylamide.
The Intervenors
did not state a position with regard to the petition for an extraordinary writ
due to their pending appeal before this Court seeking intervention in Stern.
They argue that if they are permitted to intervene in Stern, then the
concerns of CIBA, Ondeo, and Cytec would be addressed rendering the petition
for an extraordinary writ moot. We agree with the Intervenors that our decision
today with regard to their appeal of the Circuit Court of Marshall County's denial
of their motion to intervene in the Stern action
renders the Pettry defendants' petition for an extraordinary writ moot
and therefore, we deny to issue a Rule to Show Cause in that petition.
The issues
and the parties involved in both the Pettry litigation and the Stern litigation
are numerous. The Pettry litigation includes claims for personal injury,
loss of enjoyment of life, emotional distress, and annoyance and inconvenience,
while the litigants in both the Pettry and Stern actions seek medical
monitoring. Moreover, we recognize that as of the time of this appeal, not every
party involved in either the Pettry or the Stern litigation is
a party to both actions; however, most of the parties are involved in both cases.
Additionally,
as the Stern plaintiffs point out, there may be significantly different
aspects to the actual remedies sought by the two different proposed class actions
due to the fact that even though the actions are similar, they are not identical.
Even so, we believe that the issues are similar enough that many of the same
depositions, requests for admissions, interrogatories, and various other discovery
requests will be identical in nature. We further recognize that the litigants
in the Stern action are clearly not in the same place with regard to the
completion of discovery as those in the Pettry litigation, who we were
advised may be two years behind the Stern litigants with regard to discovery.
It is
with these issues in mind that we believe we are called upon to exercise our
inherent authority pursuant to the Constitution of West Virginia to transfer
the entire Pettry litigation to the Circuit Court of Marshall County for
further disposition of both causes of action. We further order that the Pettry litigants
be permitted to intervene in the Stern action pursuant to W.Va.R.Civ.Pro.
24(b)(2).
It is
obvious to us that intervention should have been permitted due to the questions
of law and fact in common between the parties. In Syllabus Point 3 of Bower
v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999), we held:
In
order to sustain a claim for medical monitoring expenses under West Virginia
law, the plaintiff must prove that (1) he or she has, relative to the general
population, been significantly exposed; (2) to a proven hazardous substance;
(3) through the tortious conduct of the defendant; (4) as a proximate result
of the exposure, plaintiff has suffered an increased risk of contracting a serious
latent disease; (5) the increased risk of disease makes it reasonably necessary
for the plaintiff to undergo periodic diagnostic medical examinations different
from what would be prescribed in the absence of the exposure; and (6) monitoring
procedures exist that make the early detection of a disease possible.
In this
case, the common questions necessarily include: whether acrylamide is a proven
hazardous substance; whether the defendants' conduct in supplying acrylamide-
containing products was tortious; whether those exposed to acrylamide face an
increased risk of contracting a serious latent disease; whether the increased
risk makes monitoring
reasonably necessary; and whether monitoring procedures are available. We recognized
in Ball, 208 W.Va. at 403, 540 S.E.2d at 927, that: “Doubts regarding
the propriety of permitting intervention should be resolved in favor of allowing
it, because this serves the judicial system's interest in resolving all related
controversies in a single action.” (citations omitted). We believe that
the circuit court abused its discretion by not permitting the Pettry litigants
to intervene.
Moreover,
our Constitution provides that “[g]eneral supervisory control over all intermediate
appellate, circuit, and magistrate courts resides in the Supreme Court of Appeals.
W.Va. Const., Art. VIII, § 3.” (See
footnote 5) Syllabus Point 1, Carter v. Taylor, 180 W.Va.
570, 378 S.E.2d 291 (1989). See also, Rogers v. Albert, 208 W.Va.
473, 481, 541 S.E.2d 563, 571 (2000); Gilman v. Choi, 185 W.Va. 177, 406
S.E.2d 200 (1990); State ex rel. Canterbury v. Paul, 205 W.Va. 665, 672,
520 S.E.2d 662, 669 (1999); State ex rel. Farley v. Spaulding, 203 W.Va.
275, 399, 507 S.E.2d 376, 400 (1998). The purpose of this constitutional clause
is to provide a unified court system and to centralize administrative authority
in this Court. Thus, it is our task to supervise the administration of justice
in the circuit courts to ensure that fair standards of procedure are maintained.
To this end, we believe that it is imperative that both the Pettry and
the Stern actions be handled by one judge in one circuit court.
Judicial
supervision and responsibility “implies the duty of establishing and maintaining
civilized standards of procedure and evidence.” McNabb v. United States,
318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943). See, Dimon
v. Mansy, 198 W.Va. 40, 46, 479 S.E.2d 339, 345 (1996). We also recognize
that “'[a] court “has inherent power to do all things that are reasonably
necessary for the administration of justice within the scope of its jurisdiction.” 14
Am. Juris., Courts, section 171.' Syllabus Point 3, Shields v. Romine,
122 W.Va. 639, 13 S.E.2d 16 (1940).” Syllabus Point 1, State ex rel.
Rees v. Hatcher, 214 W.Va. 746, 591 S.E.2d 304 (2003). While the underlying
issues in Romine and Hatcher dealt with the exercise of authority
within a circuit court, the principle necessarily applies to this Court as the
inherent power of the judiciary has been well recognized in this jurisdiction. See
e.g., Virginia Electric & Power Co. v. Haden, 157 W.Va. 298, 306,
200 S.E.2d 848, 853 (1973); Syllabus Point 2, Frazee Lumber Co. v. Haden,
156 W.Va. 844, 197 S.E.2d 634 (1973).
Moreover,
in Daily Gazette Co., Inc. v. Canady, 175 W.Va. 249, 251-252, 332 S.E.2d
262, 264-265 (1985), we explained that such inherent power has been recognized
in a variety of contexts at both the appellate and trial court levels including:
In
re Pauley, 173 W.Va. 228, 314 S.E.2d 391, 396 (1984) (provision and supervision
of court personnel); Syl. pt. 4, Prager v. Meckling, 172 W.Va. 785, 310
S.E.2d 852 (1983) (imposition of sanctions to maintain a fair and orderly trial); In
re L.E.C., 171 W.Va. 670, 301 S.E.2d 627, 630 (1983) (supervision, regulation,
definition, and control of the practice
of law); Perlick & Co. v. Lakeview Creditor's Trustee Committee,
171 W.Va. 195, 298 S.E.2d 228, 235 (1982) (elimination of dormant cases from
judicial dockets); E.H. v. Matin, 168 W.Va. 248, 284 S.E.2d 232 (1981)
(transfer of actions to lower tribunals for further proceedings); State
v. Daggett, 167 W.Va. 411, 280 S.E.2d 545, 556 n. 3 (1981) (compulsion
of attendance by witnesses); Sparks v. Sparks, 165 W.Va. 484, 269 S.E.2d
847, 848 (1980) (grant of custody of a child to a person outside jurisdiction
of court or permission to one who has custody to take child to another state
or foreign jurisdiction); Hendershot v. Hendershot, 164 W.Va. 190, 263
S.E.2d 90, 96-97 (1980) (imposition of civil contempt sanctions); State
ex rel. Goodwin v. Cook, 162 W.Va. 161, 171-72, 248 S.E.2d 602, 607-08
(1978) (appointment of special prosecutor); Syl. pt. 3, State ex rel. Bagley
v. Blankenship, 161 W.Va. 630, 246 S.E.2d 99 (1978) (determination of funding
necessary for the effective operation of the judiciary); State ex rel. Moran
v. Ziegler, 161 W.Va. 609, 614, 244 S.E.2d 550, 553 (1978) (disqualification
of private prosecutor); Eastern Associated Coal Corp. v. Doe, 159 W.Va.
200, 208, 220 S.E.2d 672, 678 (1975) (enforcement of judicial orders); Corbin
v. Corbin, 157 W.Va. 967, 980, 206 S.E.2d 898, 906 (1974) (modification
of divorce decrees); Virginia Electric & Power Co. v. Haden, 157
W.Va. at 306, 200 S.E.2d at 853 (transfer of actions to administrative agencies
for further proceedings); State v. Cowan, 156 W.Va. 827, 834, 197 S.E.2d
641, 645 (1973) (direction of pretrial discovery); Maxwell v. Stalnaker,
142 W.Va. 555, 563, 96 S.E.2d 907, 912 (1957) (adjudication of payment of costs); State
ex rel. Chemical Tank Lines, Inc. v. Davis, 141 W.Va. 488, 493, 93 S.E.2d
28, 31 (1956) (prescription and enforcement of rules and regulations for the
conduct of judicial business).
In Mansy,
we also wrote:
Of
course, our supervisory and rulemaking authority is not a form of free-floating
justice, untethered to legal principle. Attempts by an appellate court, for example,
to use broad
supervisory and rulemaking authority as a way to control the properly vested
discretion of the trial court should be squarely rejected. But, on occasion,
and we think this is one, we must act to secure rights and fairness when we
are persuaded a procedure followed in a trial court is wrong.
Id. at 46, 479 S.E.2d at 345. We also explained in Mansy that “we
may require lower courts to adhere to procedures deemed desirable as a matter
of sound judicial practice even though the procedures may not be directed either
by statute or the Constitution.” Id. at 50, 479 S.E.2d at 349 (1996). See
also, In Interest of Tiffany Marie S., 196 W.Va. 223 n.17, 470 S.E.2d
177 n. 17 (1996) (stating that: “Under our supervisory authority over
circuit courts, we may require the courts to follow procedures deemed desirable
from the viewpoint of sound judicial policy and practice although they are
not specifically commanded by the Constitution or the Legislature.”).
Consequently,
we believe that it is in the best interest of all of the parties and in the interest
of the administration of justice that these cases be tried in the same circuit
court in front of the same circuit judge. Accordingly, we instruct the Circuit
Court of Boone County to immediately transfer the Pettry case to the Circuit
Court of Marshall County. In doing so, however, we are not ordering that the
cases be consolidated. Instead, we specifically order that intervention be granted
to the Pettry litigants. We leave any additional concerns of the parties
to the Circuit Court of Marshall County to reconsider in light of this decision
as we believe that the circuit court is in a better position to manage this litigation
and to protect the interests of both the Pettry and Stern litigants.
The circuit judge should manage the cases and the issues herein as he deems
appropriate.
Litigating
these cases in one circuit court in front of the same judge will help to ensure
that none of the parties is prejudiced by the potential of duplication of efforts
and possible inconsistent results. Of course, the circuit judge may in his discretion
after consideration of all appropriate factors consolidate these cases or try
them separately. We believe that allowing one circuit judge to handle both cases
will alleviate the concerns that some interests of potential class members are
not adequately protected by the current representative plaintiffs and will help
to prevent any unnecessary expenses or the possibility of adverse decisions that
could occur in separate circuit courts.
We also
note that our decision to send the Pettry litigation to the Circuit Court
of Marshall County should not be construed as a determination that we believe
one circuit judge is more qualified to handle these cases than another circuit
judge. We made the determination to send the Pettry litigation to the
Circuit Court of Marshall County based solely upon the fact that the Stern litigation
is much further along with discovery and therefore, the Circuit Court of Marshall
County should necessarily be more familiar with the litigants and the surrounding
issues.