SER Appalachian Power v. MacQueen
Annotate this Case
September 1996 Term
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No. 23402
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STATE OF WEST VIRGINIA EX REL.
APPALACHIAN POWER COMPANY, ET AL.,
Petitioners
v.
HONORABLE A. ANDREW MACQUEEN, III, JUDGE OF THE
CIRCUIT COURT OF KANAWHA COUNTY, CLEO ABBOTT, ET AL.,
Respondents.
________________________________________________________________
WRIT OF PROHIBITION
WRIT DENIED
________________________________________________________________
Submitted: September 10, 1996
Filed: November 14, 1996
Attorneys for Petitioners-Defendants:
Charles R. McElwee, Esq. Dennis C. Sauter, Esq.
Joseph Beeson, Esq. A. L. Emch, Esq.
Robinson & McElwee Jackson & Kelly
Charleston, West Virginia Charleston, West Virginia
Attorneys for Appalachian Power Company, Attorneys for The Goodyear Tire & Rubber
Ohio Power Company, Central Operating Company, Bayer Corporation, Potomac
Company, Kaiser Aluminum & Chemical Edison Company, West Penn Power
Corporation, Ravenswood Aluminum Company, Monongahela Power
Corporation and Aroostook Chemical Company and Duquesne Light Company
Corporation
Richard C. Polley, Esq. David Armstrong, Esq.
Dickie, McCamey & Chilcote George McGrann, Esq.
Pittsburgh, Pennsylvania Dickie, McCamey & Chilcote
Attorney for Appalachian Power Company, Wheeling, West Virginia
Ohio Power Company and Central Attorneys for PPG Industries, Inc.
Operating Company
Charles Love, Esq. Richard Hayhurst, Esq.
Bowles Rice McDavid Graff & Love Parkersburg, West Virginia
Charleston, West Virginia Attorney for FMC Corporation
Attorney for Monsanto Corporation
Robert H. Sweeney, Jr., Esq. Cynthia M. Hutchins, Esq.
Jenkins, Fenstermaker, Krieger, Sharlock Repcheck & Mahler
Kayes & Agee Pittsburgh, Pennsylvania
Huntington, West Virginia Attorney for Cyprus Foote Mineral
Attorney for Inco Alloys International, Inc. Corporation
Attorneys for Respondents-Plaintiffs:
Scott S. Segal, Esq. Theodore Goldberg, Esq.
Segal and Davis Goldberg, Persky, Jennings & White
Charleston, West Virginia Pittsburgh, Pennsylvania
Stuart Calwell, Esq. Teresa C. Postle, Esq.
Calwell & McCormick Law Offices of James F. Humphreys
Charleston, West Virginia Charleston, West Virginia
James H. Rion, Jr., Esq.
Ness, Motley, Loadholt,
Richardson & Poole
Charleston, South Carolina
JUDGE RECHT sitting by temporary assignment delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "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).
2. "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, ___ W. Va. ___, 475 S.E.2d 555
(1996).
3. 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.
Recht, Judge:See footnote 1
There are currently pending in the Circuit Court of Kanawha County a large
number of separate civil actionsSee footnote 2 filed by or on behalf of individuals (hereinafter "plaintiffs")
claiming physical impairment resulting from the exposure to the hazards of asbestos and/or
asbestos-containing products.See footnote 3
According to each complaint, the asbestos exposure occurred while the
plaintiffs, who are employees of independent contractors, were constructing, repairing, and/or maintaining various facilities owned by each defendant, all of which are located in
West Virginia.See footnote 4 These cases are collectively known as the Premises Liability Cases, and the
defendants are known as the Premises Liability Defendants (hereinafter "petitioners" or
"Premises Liability Defendants"). The Premises Liability Cases have been assigned to the
Honorable A. Andrew MacQueen, a circuit judge who has many years of experience in
presiding over complex cases generally and mass toxic tort litigation specifically.See footnote 5
In an effort to reduce the transaction costs and inefficiencies associated with
a case-by-case trial of the Premises Liability Cases, Judge MacQueen formulated a trial
management plan (hereinafter "the Plan") whereby all of the Premises Liability Cases would
be consolidated for purposes of presenting to a single jury two discrete questions:
(1) whether each premises owner failed to maintain a reasonably safe workplace; and (2) if
a premises owner did fail to maintain a reasonably safe workplace, during what period or
periods of time did the premises owner fail to maintain a reasonably safe workplace.See footnote 6
The Premises Liability Defendants challenge the Plan, contending that the trial
court abused its discretion by (1) not conforming to the solicitudes of State ex rel. Appalachian Power Co. v. Ranson, 190 W. Va. 429, 438 S.E.2d 609 (1993);See footnote 7 and (2) if the
criteria for consolidation as developed by Ranson were applied, the Plan must fail because
there are no common issues of law or fact, and assuming that there are such common issues,
the Plan would create such chaos that the resulting prejudice to each Premises Liability
Defendant speaks against the implementation of the Plan.
In an effort to prevent the implementation of the Plan, the petitioners filed this
writ of prohibition contending that the Plan is a "substantial, clear-cut legal error plainly in
contravention of [Rule 42(a), West Virginia Rules of Civil Procedure], which may be
resolved independently of any disputed facts and there is a high probability that the trial will
be completely reversed if the error is not corrected in advance" so that the writ of prohibition should be granted. See Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979). We
granted the Rule to Show Cause on May 1, 1996, returnable on September 10, 1996. The
petitioners were most strident in their initial and reply papers, as well as during oral
argument, in questioning whether Judge MacQueen supported the Plan with findings
sufficient to satisfy the four-part test announced in State ex rel. Appalachian Power Co. v.
Ranson, 190 W. Va. 429, 438 S.E.2d 609 (1993).
This Court agreed that the Order of Consolidation entered by the trial court
failed to set forth sufficient grounds to establish for review why consolidation was proper
within the boundaries recited in Ranson and directed the trial court to state in an appropriate
order responses to each of the four inquiries described in Syllabus Point 2 of Ranson (see
supra note 7), which was to be filed in this Court on or before the 7th day of October, 1996.
Judge MacQueen, in response to this Court's Order of September 16, 1996,
conducted a further hearing on all issues relating to the Plan and during that hearing made
precise findings of fact and conclusions of law addressing the four factors to determine
whether or not consolidation was proper as required by Ranson.
The Court now has before it all matters of record, including the circuit court's
response to the Order of September 16, 1996, and the briefs and arguments of counsel. For
the reasons stated below, the Order of Consolidation incorporating the Plan of Trial
Management formulated by the respondent judge is approved and the writ of prohibition is
denied.
I.
STANDARD OF REVIEW
As is our custom, we recite the standard by which matters before this Court
will be reviewed. A decision by a trial court to consolidate civil actions on any or all matters
in issue under Rule 42(a) of the West Virginia Rules of Civil Procedure will be deferentially
reviewed under an abuse of discretion standard.
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.
Syllabus Point 1, Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971).
II.
DISCUSSION
Asbestos cases such as those we are now considering present a complex pattern
of legal, social, and political issues that threaten to cripple the common law system of
adjudication, if for no other reason by the sheer volume of cases. James A. Henderson, Jr.
& Aaron D. Twerski, Stargazing: The Future of American Products Liability Law, 66
N.Y.U. L. Rev. 1332, 1336 (1991). A recent study concluded that the disposition of all
currently pending asbestos cases for both personal injury and property damages, if treated
in the traditional course of litigation, would require approximately 150 judge years. See Jack
B. Weinstein, Individual Justice in Mass Tort Litigation 140 (1995) (citing Thomas Willging, History of Asbestos Case Management (Federal Judicial Center staff paper for June 25,
1990, National Asbestos Conference)). Congress, by not creating any legislative solution
to these problems, has effectively forced the courts to adopt diverse, innovative, and often
non-traditional judicial management techniques to reduce the burden of asbestos litigation
that seem to be paralyzing their active dockets.See footnote 8
It is against this backdrop that we analyze the Plan developed by Judge
MacQueen to determine whether it is yet another creative, innovative technique designed to
achieve an orderly, reasonably swift and efficient disposition of the Premises Liability Cases in a manner that does not trespass upon the procedural due process rights of all of the parties.
We begin our analysis of the Plan by measuring it against the four-part test
announced by this Court in Syllabus Point 2 of State ex rel. Appalachian Power Co. v.
Ranson, 190 W. Va. 429, 438 S.E.2d 609 (1993). In Ranson, this Court established that a
trial court should consider whether or not to consolidate issues under W. Va. R. Civ. P.
42(a), under the following factors: (1) whether the risks of prejudice and possible confusion
outweigh the consideration 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. Id.
The announced goal of the Plan is to divide the trial of the Premises Liability
Cases into two phases. The first phase will not be plaintiff-specific; instead it will be
premises-specific by concentrating on whether each location owned by the Premises Liability
Defendants was a reasonably safe workplace and, if not, during what period of time the
premises was not reasonably safe.
Phase one will develop the fundamental negligence issues associated with (1)
the presence of asbestos within the premises; (2) the concentration of asbestos within the
premises; (3) the physical and chemical properties of asbestos and whether those properties
present an unreasonable risk of harm; (4) the knowledge of the Premises Liability Defendants of the presence and concentration of asbestos, and the resulting risk of harm, if any; (5) what
the Premises Liability Defendants should have done, if anything, to address the unreasonable
risk of harm, if any, presented by the presence and concentration of asbestos; (6) what the
Premises Liability Defendants actually did to address any unreasonable risk of harm
presented by the presence and concentration of asbestos; and (7) when did items one through
six occur. The response to these fundamental, common negligence issues is determinative
of the two discrete questions to be presented to a single jury in phase one.
The trial court has found that the Plan is shaped to effectively and efficiently
prove which of the premises were not reasonably safe, and during what period of time those
premises were not reasonably safe, in order to purge the list of defendants in such a manner
that only those Premises Liability Defendants who failed to maintain their premises in a
reasonably safe condition would continue to phase two of the trial.See footnote 9 Those Premises
Liability Defendants who did maintain their premises in a reasonably safe condition would
be completely and finally dismissed from the Premises Liability Cases with prejudice.
The trial court has found and concluded that the common issues to be
developed during phase one can be proven with a limited number of witnesses testifying
about the historical background of asbestos; the discovery of the health hazards associated
with asbestos; the state-of-the-art asbestos studies and medical knowledge of the disease process created by asbestos; and the health hazard, if any, to the individuals exposed to
asbestos. The trial court has concluded that the testimony of these limited number of
witnesses can apply to all Premises Liability Defendants and, thus, eliminate the costly, time-
consuming repetition of testimony in these areas.
Finally, the trial court has concluded that the Plan is necessary to prevent an
exhaustion of funds to the extent that in the event that certain plaintiffs are entitled to relief,
the funds will be available to satisfy those judgments rather than having those resources
depleted by being spent in determining whether or not the plaintiffs were entitled to that
relief.
Because of the volume of cases which have been consolidated, this case is
probably the best example of why a trial court should be given broad authority to manage its
docket with regard to asbestos cases, controlled only by measuring that authority against the
four part test of Ranson. It is essential that trial courts have the authority to create judicial
management procedures. "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. Charles M. Sledd Co., ___ W. Va. ___,
475 S.E.2d 555 (1996).
The Plan presents a novel method of fact resolution which, while possibly
atypical in the traditional litigation process, is indispensable in handling mass litigation
cases, such as damage claims for asbestos exposure.
The trial court is in the best position to determine the immediate wisdom of
consolidating cases for purposes of resolving common issues of law and fact, and we refuse
to second guess the experience and talent of the trial judge. Based on the hearing held by
Judge MacQueen regarding the Plan and the findings and conclusions announced following
that hearing, we can see no abuse of discretion and find that the Plan is appropriate under the
circumstances in conformity with the criteria established in Ranson.
We find nothing in the Plan that would prejudice any of the defendants. To
be sure, there is much in the Plan to recommend it to all parties because it represents an
effective and efficient manner to bring closure to these cases without depleting valuable
resources in the event that they are needed to satisfy a monetary award.
Writ denied.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme
Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor
of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same
date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge
Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals
commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
There are a minimum of one thousand separate civil actions on the active docket.Footnote: 3
Asbestos is a natural fibrous mineral with organic heat resistant and fire retardant
properties which have a number of applications, including insulation around cold or hot air
or liquid conductors or boilers; noise absorption in wall insulation and acoustic tile ceilings;
and the covering of structural steelwork of buildings to guard against fire. The massive "use
of asbestos in industrial, commercial and household contexts has exposed millions of people
to its insidious dangers." In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. 710, 734-36 (E.
& S.D.N.Y. 1991), vacated, 982 F.2d 721 (2d Cir. 1992), modified sub nom., 993 F.2d 7 (2d
Cir. 1993) (Approving a settlement trust pursuant to an asbestos manufacturer's Chapter 11
bankruptcy plan with respect to a class action suit for personal injury against the asbestos
manufacturer. Although the district court's judgment was subsequently vacated, the 271-
page opinion written by Judge Weinstein is instructive on the history of asbestos litigation.)
See also Deborah R. Hensler, Asbestos Litigation in the United States: A Brief Overview,
Written Testimony Delivered to the Courts and Judicial Administration Subcommittee, U.S.
House Judiciary Committee (Oct. 24, 1991) (commenting that "the asbestos litigation
problem is a public health catastrophe, which is itself the legacy of decades of judgments of
public and private decisionmakers [sic] who failed to contain or regulate the use of asbestos
in the workplace").Footnote: 4
There are 33 facilities owned by 17 defendants. The owners of each facility are the
only defendants in this case; neither the plaintiffs' employers nor the manufacturers of
asbestos or asbestos containing products are parties to this civil action. Footnote: 5
This record reveals and this Court may properly take judicial notice of Judge
MacQueen's extensive background and experience as a preeminent jurist in matters relating
to asbestos litigation. See W. Va. R. Evid. 201(c).Footnote: 6
The Plan was contained in an order entitled "Order on Common Issues and
Consolidation," entered on February 23, 1996.Footnote: 7
In Syllabus Point 2 of State ex rel. Appalachian Power Co. v. Ranson, 190 W.Va.
429, 438 S.E.2d 609 (1993), this Court set forth the standard by which a circuit court should
consider consolidation issues:
The trial court, when exercising its discretion in deciding consolidation issues under W.Va.R.Civ.P. 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.Footnote: 8 The alternative management techniques used by state and federal judges to handle their enormous dockets of asbestos cases include streamlining the discovery and trial phases; implementing alternative dispute resolution; consolidating cases for trial on all issues; consolidating cases for trial on limited issues; transforming aggregate cases into class actions; placing cases on an inactive docket if the plaintiffs have little or no objective symptoms and holding those plaintiffs in abeyance until their impairment manifests; and appointing expert witnesses and assigning special masters to gather data and encourage settlement. See In re Joint E. & S. Dist. Asbestos Litig., 129 B.R. 710, 748-49 (E. & S.D.N.Y. 1991), vacated, 982 F.2d 721 (2d Cir. 1992), modified sub nom., 993 F.2d 7 (2d Cir. 1993). See also Deborah R. Hensler, Asbestos Litigation in the United States: A Brief Overview, Written Testimony Delivered to the Courts and Judicial Administration Subcommittee, U.S. House Judiciary Committee (Oct. 24, 1991) ("Courts have certified asbestos class actions, consolidated asbestos cases for trial, and bifurcated, trifurcated and reverse bifurcated issues in both individual and consolidated trials. Courts and parties have developed and implemented court-based and private alternative dispute resolution procedures. Courts have mandated extensive data collection efforts to support settlement efforts, and have experimented with computer-based models for assessing damages. State and federal court judges have joined together to manage caseloads in particular locales. The fact that so many claims have been resolved to date is a tribute to these efforts. But these efforts have failed to expedite a substantial fraction of the caseload. Nor do they appear to have brought about significant reductions in transaction costs.")(footnote omitted); Linda S. Mullenix, Beyond Consolidation: Postaggregative Procedure in Asbestos Mass Tort Litigation, 32 Wm. & Mary L. Rev. 475 (1991).Footnote: 9 The precise formula for the presentation of phase two of the trial has not been announced. However, it is intended to be plaintiff-specific, concentrating on issues relating to proximate cause, damages, and comparative fault.
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