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IN THE SUPREME COURT OF APPEALS OF WEST VIRG!INIA.?q;;~~,:_coc"~~:~,,;::~_, ;~~ ~ ---.I
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Docket No. \0 ~6LJ04 (Underlying Wyoming County Civil Action No. 18-C-66)
MUNICIPAL WATER WORKS,
Petitioner,
v.
HONORABLE WARREN R. MCGRAW, Judge of the Circuit Court of Wyoming County, West Virginia
Respondent.
VERIFIED PETITION FOR WRIT OF PROHIBITION
DATED: April 26, 2019
PREPARED By:
Counsel for Petitioner
DUANE J. RUGGIER II (WV STATE BAR # 7787) EVAN S. OLDS (WV STATE BAR # 12311) 901 Quarrier Street Charleston, West Virginia 25301 (304) 344-0100 - Telephone (304) 342-1545 - Facsimile
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................................... 111
I. ISSUES PRESENTED ••••••.•.•.•.•.•••••.•••.••.•.•.••••.•.•.•.•.•.••••••.•••.••••.••••.•.•.••••••.•.•••.•.•••.•.•.•••.•. 1
II. STATEMENT OF THE CASE •.•.•••••••.•.••.••••••••.•••••••.•.••••••.••••••.•.••••••.•.••••••••.•.•.•.•.•.•.•.••. 1
III. SUMl\1ARY OF ARGUMENT •.•••.•.••••.•.••••.•.•.•.•.•••.••••••.•.••••.•.••••.•.•.•••••••••••••••••••.••••••.•.• 3
IV. ST ATEMENT REGARDING ORAL ARGUMENT AND DECISION .•.•.•.•.•.•.•.•••••• 3
V. STANDARD OF REVIEW ••••••.•.•.••••••.•.••.•••.•.•.•••.••.•.•••••.••••••.••••••.•.•.••••.•.•••••••••••••••.•.•.•. 4
VI. ARGUMENT •.•••••.•.•.••••.•••••.•.•.•.•••.•••.•••••••••••••••.•.•••.•.•.•••.••••.••••••.•.••••••.•.••••.•.•••••.•••.•.•.••••• 5
A. THIS HONORABLE COURT SHOULD GRANT THE REQUESTED WRIT AS THE
CIRCUIT COURT WAS CLEARLY ERRONEOUS AND ABUSED ITS DISCRETION BY
(1) FAILING TO RECUSE ITSELF, (2) GRANTING CLASS CERTIFICATION
WITHOUT ANALYZING WHETHER PLAINTIFF SATISFIED RULE 23's
REQUIREMENTS, AND (3) WITHOUT AFFORDING THE PARTIES AN
OPPORTUNITY TO CONDUCT DISCOVEYR ON CLASS CERTIFICATION .•.•.•.•.•.•.•••• .5
i. THE HONORABLE WARREN MCGRAW ABUSED HIS DISCRETION IN
CERTIFYING A CLASS IN WHICH HE Is A MEMBER •.••••••.•.••.•••.•.•.••••.•••.•.•.•.•.••••.•.• 6
ii. THE CIRCUIT COURT ABUSED ITS DISCRETION AND WAS CLEARLY WRONG
IN CERTIFYING A CLASS WITHOUT ANALYZING WHETHER PLAINTIFFS
SATISFIED RULE 23's REQUIREl\1ENTS •••.•.•••.•.•.••••••.••••.•.••••.•.•.••••••.•••.•••••••••••.•.•.•.• 8
iii. THE CIRCUIT COURT ABUSED ITS DISCRETION IN CERTIFYING A CLASS
BEFORE THE PARTIES COULD ENGAGE IN MEANINGFUL DISCOVERY ON CLASS
CERTIFICATION ISSUES ••.•.•.•...•.••••.•.••••.•.•.•.•••.••••.•••••••••••••.••••••.•.•.••••••••.•.•••••.••••••. 29
B. PETITIONER IS PREJUDICED AND THERE IS No OTHER ADEQUATE REMEDY TO
TIMELY CURE SUCH PREJUDICE UNDER WEST VIRGINIA LAW •.•••.•••.••••••..•.•.•.• 30
11
TABLE OF AUTHORITIES
Cases
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821-22 (1986) ........................................................... 7
Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 624, (1997) ......................................................... 19
Avery v. State Farm Mut. Auto. Ins. Co., 216 I11.2d 100,296 I11.Dec. 448, 835 N.E.2d 801, 827 (2005) ........ , ....................................................................... ,"-' .................... , ............. , ........................ 12
Ball v. Union Carbide Corp., 385 F.3d 713,727-28 (6th Cir.2004) ............................................ .19
Barnes v. Am. Tobacco Co., 161 F.3d 127, 143-146 (3d Cir. 1998) ........................................... 19
Bearv. Oglebay, 142 F.R.D. 129, 131 (N.D.W. Va. 1992) .......................................................... .10
Boughton v. Cotter Corp., 65 F.3d 823, 827 (1 Oth Cir.1995) ....................................................... .19
Bower v. Westinghouse Elec. COlp., 206 W.Va. 133,522 S.E.2d 424, 430 (1999) ................ 16, 18
Brown v. Nucor Corp., 785 F.3d 895, 908-09 (4th Cir.2015) ........................................................... 17
Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979) ............................................................ 10, 28
Clarkson v. Coughlin, 783 F.Supp. 789, 798 (S.D.N.Y.l992)); ................................................... 21
Comcast COlp. v. Behrend, 569 U.S. 27, 33 (2013) ........................................................ .10,26,28
Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953) ........................................................... .4
Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) ....................................... 26
Gen. Tel. Co. of the Nw. v. Equal Employment Opportunity Comm'n, 446 U.S. 318, 330 (1980)21
Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982) ....................................................................... 22
Georgine v. Amchem Prod., Inc., 83 F.3d 610, 626 (3d Cir. 1996)); ........................................... 19
GMS Mine Repair & Maint., Inc. v. Miklos, 238 W. Va. 707, 714, 798 S.E.2d 833, 840 (2017) .......................................................................................................................... 11, 12, 13,29
Goodv. Am. Water Works Co., Inc., 310 F.R.D. 274, 284 (S.D.W. Va. 2015) ................... 9, 17,26
111
Hardwood Grp. v. Larocco, 219 W. Va. 56, 61, 631 S.E.2d 614,619 (2006) ...................................... 10, 11
In re St. Jude Med., Inc., 425 F .3d 1116, 1122 (8th Cir. 2005) ..................................................... 19
In re West Virginia Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003) ................................................................................................ 5, 9,11, 12, 17,21,23,25,28
International Woodworkers of America, AFL-CIO v. Chesapeake Bay Plywood Corp., 659 F.2d 1259,1267 (4th Cir.1981) .............................................................................................................. 10
Jefferson County Board of Education v. Jefferson County Education Association, 183 W.Va. 15, 393 S.E.2d u53 (1990) ..................................................... ;; ................................... -; ........................ 10
Keesecker v. Bird, 200 W.Va. 667,490 S.E.2d 754 (1997) ............................................................ 5
Kelly v. FedEx Ground Package System, Inc. 2011 WL 1584764 (S.D. W.Va. Apri126, 2011) .. 30
Keplinger v. Virginia Elec. & Power Co., 208 W.Va. 11,20 n. 13,537 S.E.2d 632,641 n. 13 (2000); ... 11
Love v. Georgia Pac. Corp., 214 W. Va. 484, 485,590 S.E.2d 677, 678 (2003) ................... 10, 29
McFoy v. Amerigas, Inc., 170 W. Va. 526, 527,295 S.E.2d 16, 18 (1982) ........................ 5, 30, 31
Painter v. Peavy, 192 W.Va. 189, 192 n. 6,451 S.E.2d 755,758 n. 6 (1994) ............................................ 11
Penn-Am. Ins. Co. v. Osborne, 238 W. Va. 571,575, 797 S.E.2d 548,552 (2017); ................................. 11
Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 520-528, 694 S.E.2d 815,853-861 (2010) ........................................................................................................................................ 11, 12, 13,25
State ex reI. Brown v. Dietrick, 191 W. Va. 169, 173,444 S.E.2d 47,51 (1994) ........................... 7
State ex reI. Erie Ins. Prop. & Cas. Co. v. Nibert, No. 16-0884,2017 WL 564160 .. .10,14,15,18
State ex reI. Hoover v. Berger, 199, W. Va. 12,483 S. E. 2d 12 (1996) ............................... 4, 5, 30
State ex rei. Osborne v. Chinn, 146 W. Va. 610, 614,121 S.E.2d 610, 612 (1961) ....................... 8
State ex reI. State v. Sims, 240 W. Va. 18, 807 S.E.2d 266 (2017) ................................................ .4
State ex rei. Thrasher Eng'g, Inc. v. Fox, 218 W. Va. 134,624 S.E.2d 481 (2005) ........................ 5
State ofW Virginia ex reI. Chemtall Inc. v. Madden, 216 W. Va. 443, 447-48, 607 S.E.2d 772, 776-77 (2004) .................................................................................................. 10,11,14,15,21,28
State v. Sutphin, 195 W.Va. 551, 563,466 S.E.2d 402,414 (1995) ........................................................... 11 IV
Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, n.7, 109,459 S.E.2d 374, 386 (1995) ............................................................................................................................................... 7
Tumey v. Ohio, 273 U.S. 510, 532 (1927) ................................................................................... 7, 8
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) ................................................ 26
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) ................................... 10, 16, 17, 18,22
Ways v. Imatioll Entelprises COIp., 214 W. Va. 305, 312, 589 S.E.2d 36, 43 (2003) ................................ 11
Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115, 118,2 S.E.2d 898,-899 (1939) ..... 15
Wheeling Park Comm'n v. Dattoli, 237 W. Va. 275,280,787 S.E.2d 546, 551 (2016); ............. 15
Withrow v. Larkin, 421 U.S. 35, 47 (1975) ...................................................................................... 7
StatuteslRules
W.Va. Code § 53-1-1 ....................................................................................................................... 4 W. Va. R. Civ. P. 23 ...................................................................................................................... 10
v
I. QUESTION PRESENTED
Whether the Circuit Court (Judge McGraw presiding) abused its discretion and
committed clear error when it certified a class of which the Circuit Court (Judge McGraw) is a
class member, without analyzing whether Plaintiff satisfied Rule 23' s prerequisites, without any
record upon which to base a class certification order, and without affording the parties
opportunity to conduct discovery on class certification issues.
II. STATEMENT OF THE CASE
Plaintiffs Sherman Taylor, David and Joanna Bailey filed a Complaint on June 19, 2018,
alleging that they and other "similarly situated individuals" were exposed to "illness causing
pollutants in the water supply" of Petitioner, Municipal Water Works, in 2016 and 2017.
Plaintiffs allege they and "all Class members were customers of Defendant Pineville Municipal
Water." Compi. ~~ 1-2, 21, 23, App. R. at. 1-11. Plaintiffs define two sub-classes:
29. The first sub-class ["Sub-Class One"] is defined as: All customers of Pineville Municipal Water who were exposed to illness causing pollutants and subsequently suffered and were treated for adverse health effects.
30. The second sub-class ["Sub-Class Two"] is defined as: All customers of Pineville Municipal Water who were exposed to illness causing pollutants and require medical monitoring for adverse health effects.
Compi. ~ 29, App. R. at. 1-11. Plaintiffs assert causes of action for negligence, prima facie
negligence, and medical monitoring. Plaintiffs' Complaint seeks punitive damages, restitution,
actual damages, attorney's fees, and a fund for medical monitoring. Only one Plaintiff, Sherman
Taylor, alleges an injury-kidney cancer. See Compi. ~ 8, App. R. at. 1-11. The Plaintiffs
identify no other injury for themselves or any class members.
1
On December 7, 2018, the Plaintiffs filed a Motion for Class Certification, asserting that
the proposed class "consists of thousands of who were exposed to carcinogenic water provided
by Defendant." Mot. for Class Certif. at 6, App. R. at. 12-23. Without explanation, analysis, or
support, the Motion alleges that the class members "share overarching questions of both law and
fact"; the Plaintiffs' claims "rest on precisely the same legal and factual foundations as those of
the class"; Plaintiffs "will adequately represent the interests of the class"; that common questions
predominate; and that a class action is the superior method to resolve the claims. Mot. for Class
Certif., App. R. at. 12-23.
On December 10, 2018, Petitioner served its First Set of Interrogatories and Request for
Production of Documents on Plaintiffs who responded on January 24, 2019. App. R. at. 24.
Petitioner requested information from Plaintiffs to support their purported class action claims,
like generally what injuries Plaintiffs allege and what information Plaintiffs have to support their
claim that the Pineville water supply was contaminated. Plaintiff objected to the requests and
refused to answer. Plaintiff reiterated information from the Complaint that Plaintiff Taylor was
diagnosed with kidney cancer but refused to identify any other injury of any class member(s) or
other identified Plaintiffs. App. R. at. 25-46.
Petitioner filed its Response in Opposition to Plaintiffs' Motionfor Class Certification on
February 22, 2017, highlighting the fact that only one of the Plaintiffs have alleged any injury,
demonstrating that Plaintiffs had not satisfied Rule 23 of the West Virginia Rules of Civil
Procedure, and requesting that the parties be afforded opportunity to engage in meaningful
discovery on class certification. App. R. at. 47-140.
The Circuit Court of Wyoming County, the Honorable Judge Warren R. McGraw
presiding, heard argument on the Motion and Response on February 20, 2019, and entered its
2
Order Granting Motion for Class Certification on March 12, 2019, concluding, without
engaging in any analysis to support the conclusions and without addressing that the Circuit Court
is a class member, that Plaintiffs satisfied Rule 23. App. R. at 141-151.
III. SUMMARY OF ARGUMENT
By Plaintiffs' definition, the Wyoming County Circuit Court, the Honorable Warren
McGraw presiding, is a class member of Plaintiffs class action. Judge McGraw clearly erred by
not disqualifying himself and certifying a class of which he is a member. Further, the Circuit
Court abused its discretion and clearly erred when it certified the class without making detailed,
specific findings analyzing whether Plaintiffs have satisfied the prerequisites of Rule 23 of the
West Virginia Rules of Civil Procedure. Lastly, the Circuit Court abused its discretion and
clearly erred when it certified the class without allowing the parties opportunity to engage in
meaningful discovery. Petitioner is prejudiced from having to defend against a class action
brought by Plaintiffs who have no demonstrable claims and no support to satisfy Rule 23, and
who represent a class fraught with a myriad of individual issues and devoid of any identified
injuries. Even worse, a class member judge presides over this action. Under West Virginia law,
this Petitioner has no other remedy than this Petition for Writ of Prohibition to contest an order
granting class certification.
IV. STATEMENT REGARDING ORAL ARGUMENT AND DECISION
Pursuant to the criteria set forth in Rule 19 of the Rules of Appellate Procedure,
Petitioner believes that the decision process would be significantly aided by oral argument, as it
would allow the parties to further address the arguments presented in this matter and to respond
to questions ofthe Court regarding issues related to the Circuit Court's clear error and substantial
abuse and overstep of power.
3
V. STANDARD OF REVIEW
"The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse
of power, when the inferior court has no jurisdiction of the subject-matter in controversy, or,
having such jurisdiction, exceeds its legitimate powers." W.Va. Code § 53-1-1; see also syl. pt.
1, Crav.jord v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). In that regard, this Honorable
Court, speaking through Justice Cleckley, has held:
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: (I)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 . . ImpreSSIOns.
Syl. pt. 4, State ex reI. Hoover v. Berger, 199, W. Va. 12,483 S. E. 2d 12 (1996); syl. pt. 2, State
ex reI. State v. Sims, 240 W. Va. 18, 807 S.E.2d 266 (2017). "These factors are general
guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue." Syl. pt. 4, Hoover, 199, W. Va. 12, 483 S. E. 2d
12; syl. pt. 2, Sims, 240 W. Va. 18,268,807 S.E.2d 266.
The party seeking the writ is not required to satisfy all five factors but "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, Hoover, 199, W. Va. 12,483 S. E. 2d 12; syl. pt. 2, Sims, 240 W. Va. 18,268,807
S.E.2d 266. Although "[a] writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court," in situations where a trial court has exceeded its legitimate powers
4
and there is "no plain, speedy, and adequate remedy in the ordinary course of law" then "the
remedy by appeal is usually deemed inadequate" and "prohibition is allowed." See syl. pt. 1,
State ex reI. Thrasher Eng'g, Inc. v. Fox, 218 W. Va. 134, 624 S.E.2d 481 (2005)(holding:
"A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court.");
see also Hoover, 199 W. Va. at 21, 483 S.E.2d at 21 (holding prohibition appropriate where
"petitioner has no plain, speedy, and adequate remedy in the ordinary course oflaw.").
An order awarding class action standing is only reviewable by writ of prohibition. Syl. pt.
2, in part, McFoy v. Amerigas, Inc., 170 W. Va. 526, 527,295 S.E.2d 16, 18 (1982). The
Supreme Court of Appeals of West Virginia applies an abuse of discretion standard to a class
certification order and applies de novo review to interpret the West Virginia Rules of Civil
Procedure. This Court has stated in syllabus:
This Court will review a circuit court's order granting or denying a motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil Procedure [1998] under an abuse of discretion standard.
"An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review." Syllabus Point 4, Keesecker v. Bird, 200 W.Va. 667,490 S.E.2d 754 (1997).
Syl. pts. 1-2, In re W Virginia Rezulin Litig., 214 W. Va. 52, 56, 585 S.E.2d 52, 56 (2003).
VI. ARGUMENT
A. THIS HONORABLE COURT SHOULD GRANT THE REQUESTED WRIT As THE
CIRCUIT COURT WAS CLEARLY ERRONEOUS AND ABUSED ITS DISCRETION By (1) FAILING To RECUSE ITSELF, (2) GRANTING CLASS CERTIFICATION
WITHOUT ANALYZING WHETHER PLAINTIFF SATISFIED RULE 23's
REQUIREMENTS, AND (3) WITHOUT AFFORDING THE PARTIES AN OPPORTUNITY To CONDUCT DISCOVERY ON CLASS CERTIFICATION
This Honorable Court should issue the writ because the Honorable Warren McGraw
abused his discretion and clearly erred when he failed to disqualify himself and certified a class
5
of which the Circuit Court (Judge McGraw) is a class member. Further, the Circuit Court abused
its discretion and clearly erred when it certified the class without properly analyzing and
interpreting Rule 23' s requirements and Plaintiff s noncompliance with the same. Specifically,
the Circuit Court failed to discover whether (1) Plaintiffs have a cause of action; (2) Plaintiffs'
claims are typical of the class's claims; (3) the class shares a common questions of law or fact;
(4) the class members are so numerous that joinder is impracticable; (5) the class shares common
questions oflaw and fact that predominate over individual ones; (6) Plaintiffs can adequately and
fairly represent the class; and (7) Plaintiffs have no greater alternative to assert their claims than
through a class action. Lastly, the Circuit Court's decision was clearly erroneous and abused its
discretion when it certified the class despite Petitioner's request to conduct meaningful discovery
on class certification.
i. THE HONORABLE WARREN MCGRAw ABUSED HIS DISCRETION IN
CERTIFYING A CLASS IN WHICH HE Is A MEMBER
The Wyoming County Circuit Court is situated in Pineville, West Virginia. Pineville
Municipal Water Works provides water to the Wyoming County Courthouse and the Town of
Pineville, including the residence of the Honorable Judge McGraw. Aff., App. R. at. 152-153.
Plaintiffs have defined their classes as
29. The first sub-class ["Sub-Class One"] is defined as: All customers of Pineville Municipal Water who were exposed to illness causing pollutants and subsequently suffered and were treated for adverse health effects.
30. The second sub-class ["Sub-Class Two"] is defined as: All customers of Pineville Municipal Water who were exposed to illness causing pollutants and require medical monitoring for adverse health effects.
6
See Compi. ~ 29-30, App. R. at. 1-11. By Plaintiffs' class definitions, the entire Wyoming
County Circuit Court, including Honorable Judge Warren McGraw, is a class member in
Plaintiffs' class action lawsuit and will also preside over and preside the forum for said lawsuit.
Under West Virginia law, "[t]here is no obligation imposed on counsel to investigate the
facts known by the judge that could possibly disqualify him. The judge is duty bound to disclose
them sua sponte." Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, n.7, 109,459
S.E.2d 374, 386 (1995). Of course, there is a "presumption of honesty and integrity in those
serving as adjudicators." Withrow v. Larkin, 421 U.s. 35, 47 (1975). Under Rule 2.7 of the West
Virginia Code of Judicial Conduct, "[a] judge shall hear and decide matters assigned to the
judge, except when disqualification is required by Rule 2.11 or other law." Under Rule 2.11 of
the West Virginia Code of Judicial Conduct,
A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: ... (2) The judge knows that the judge, ... is: (a) a party to the proceeding, ... ; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; (3) The judge knows that he or she, individually or as a fiduciary, . . . has an economic interest in the subject matter in controversy or is a party to the proceeding.
(internal asterisks omitted).
The underlying rationale for requiring disqualification is based on principles of due
process. "Due process requires that the appearance of justice be satisfied .... A fair trial in a fair
tribunal is a basic requirement of due process." State ex reI. Brown v. Dietrick, 191 W. Va. 169,
173,444 S.E.2d 47,51 (1994) (quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)). Due process
requires recusal in cases wherein a judge or justice has a "direct, personal, substantial [ or]
pecuniary interest" in the outcome of the case. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821-
7
22 (1986) (quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927)). In West Virginia, "[i]t has been
held that where a justice of the peace has any pecuniary interest in any case to be tried by him,
however remote, he is disqualified to try such case." State ex rel. Osborne v. Chinn, 146 W. Va.
610,614, 121 S.E.2d 610, 612 (1961) (also finding that "prohibition is the proper procedure to
restrain a judge or magistrate from trying a case in which he is disqualified.").
Here, by Plaintiffs' class definition, the Honorable Judge Warren McGraw is a class
member in the class action lawsuit because Municipal Water Works provides water to the
courthouse in Pineville and provides water to Judge McGraw's residence. See Aff., App. R. at.
152-153. Judge McGraw has served as a Wyoming County judge since 2008, and Plaintiffs
allege the water contained harmful contaminants in 2016 and 2017. Taking Plaintiffs' allegations
as true, Judge McGraw, along with his staff, was therefore "exposed to illness causmg
pollutants" and may have "suffered ... adverse health effects" and/or "require medical
monitoring." As such, the Honorable Warren McGraw's impartiality may be reasonably
questioned as he is a class member with an interest in this lawsuit. Because Judge McGraw's
impartiality may be reasonably questioned and because he potentially stands to financially gain
from this lawsuit, he should not preside over it. Judge McGraw's continued involvement in the
case poses serious due process concerns. Thus, Judge McGraw abused his discretion and clearly
erred by not recusing himself.
ii. THE CIRCUIT COURT ABUSED ITs DISCRETION AND WAS CLEARLY WRONG
IN CERTIFYING A CLASS WITHOUT ANALYZING WHETHER PLAINTIFFS
SATISFIED RULE 23's REQUIREMENTS
Under West Virginia law,
Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a)-numerosity, commonality, typicality, and
8
adequacy of representation-and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party.
Syl. pt. 8, In re W Virginia Rezulin Litig., 214 W. Va. 52,56, 585 S.E.2d 52,56 (2003). Under
Rule 23( a) of the West Virginia Rules of Civil Procedure,
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so
- numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Under Rule 23(b )(3), which the Circuit Court relied on here,
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Rule 23' s requirements need not be analyzed sequentially but must be analyzed rigorously. See
Good v. Am. Water Works Co., Inc., 310 F.R.D. 274, 284, 295 (S.D.W. Va. 2015). This Court
has explained in syllabus that a class can only be certified after careful analysis of Rule 23' s
enumerated requirements:
A class action may only be certified if the trial court is satisfied, after a thorough analysis, that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil Procedure have been satisfied.
9
Further, the class certification order should be detailed and specific in showing the rule basis for the certification and the relevant facts supporting the legal conclusions.
Syl. pt. 8, State of W Virginia ex rei. Chemtall Inc. v. Madden, 216 W. Va. 443, 447-48, 607
S.E.2d 772,776-77 (2004) (emphasis added); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 349-52 (2011) ("certification is proper only if the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been satisfied."). If only one prerequisite is not
met, class certification is not appropriate. See W. Va. R. Civ. P. 23; State ex rei. Erie Ins. Prop.
& Cas. Co. v. Nibert, No. 16-0884,2017 WL 564160, at *2 (W. Va. Feb. 13,2017).
In addition, "[t]he party who seeks to establish the propriety of a class action has the
burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure
have been satisfied." Syl. pt. 6, Jefferson County Board of Education v. Jefferson County
Education Association, 183 W.Va. 15, 393 S.E.2d 653 (1990); syl. pt. 2, Love v. Georgia Pac.
Corp., 214 W. Va. 484, 485, 590 S.E.2d 677, 678 (2003); see International Woodworkers of
America, AFL-CIO v. Chesapeake Bay Plywood COlp., 659 F.2d 1259, 1267 (4th Cir.1981);
Bear v. Oglebay, 142 F.R.D. 129, 131 (N.D.W. Va. 1992). It should not be forgotten that a class
action is "an exception to the usual rule that litigation is conducted by and on behalf of the
individual named parties only." Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (emphasis
added); Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979). To invoke the exception, parties
seeking to maintain a class action "must affirmatively demonstrate ... compliance with Rule
23." Comcast, 442 U.S. at 33; Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
This Court has acknowledged the similarity between the West Virginia Rules of Civil
Procedure and the Federal Rules of Civil Procedure. l Indeed, the West Virginia Rules of Civil
1 Hardwood Grp. v. Larocco, 219 W. Va. 56, 61, 631 S.E.2d 614, 619 (2006) ("Because the West 10
Procedure are patterned after the Federal Rules.2 Even though a federal counterpart to a West
Virginia rule of procedure is not binding but may be persuasive, this Court has consistently relied
on federal precedent for interpretation and application of West Virginia Rule 23.3
The Federal Rule, the West Virginia Rule, and their respective progeny require that a
Plaintiff thoroughly support and affirmatively demonstrate Rule 23' s requirements and that a
Circuit Court engage a rigorous analysis to determine whether a class should be certified. Here,
the Plaintiffs did not satisfy their burden, the Circuit Court did not thoroughly analyze Plaintiffs'
case under Rule 23, and the Circuit Court therefore abused its discretion and was clearly wrong
by certifying the class.
Virginia Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, we often refer to interpretations of the Federal Rules when discussing our own rules."); Keplinger v. Virginia Elec. & Power Co., 208 W.Va. 11,20 n. 13,537 S.E.2d 632,641 n. 13 (2000); Penn-Am. Ins. Co. v. Osborne, 238 W. Va. 571, 575, 797 S.E.2d 548,552 (2017); Painter v. Peavy, 192 W.Va. 189, 192 n. 6, 451 S.E.2d 755,758 n. 6 (1994) ("Because the West Virginia Rules of Civil Procedure are practically identical to the Federal Rules, we give substantial weight to federal cases ... in detennining the meaning and scope of our rules." (citations omitted)); see State v. Sutphin, 195 W.Va. 551,563,466 S.E.2d 402, 414 (1995) ("The West Virginia Rules of Evidence are patterned upon the Federal Rules of Evidence, ... and we have repeatedly recognized that when codified procedural rules or rules of evidence of West Virginia are patterned after the corresponding federal rules, federal decisions interpreting those rules are persuasive guides in the interpretation of our rules." (citations omitted)). 2 See Hardwood, 219 W. Va. at 61, 631 S.E.2d at 619. 3 Syl. pt. 3, in part, In re W. Virginia Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003). See, e.g., id. (relying throughout on cases from the United States Supreme Court, the D.C., 2d, 3d, 4th, 5th, 6th, 7th, 8th, 10th, 11th Circuit Courts of Appeal, and district courts); Ways v. Imation Entelprises CO/p., 214 W. Va. 305, 312, 589 S.E.2d 36, 43 (2003) (relying on cases from the 4th and 7th circuits to explain that "[t]he typicality and commonality requirements of the Federal Rules ensure that only those plaintiffs or defendants who can advance the same factual and legal arguments may be grounded together as a class" and elsewhere relying on cases from the United States Supreme Court); State of W Virginia ex rei. Chemtall Inc. v. Madden, 216 W. Va. 443, 453, 607 S.E.2d 772, 782 (2004) (relying on cases from the 1 st, 2d, 4th, 5th, 6th, 7th, 8th, 9th, 11 th Circuit Courts of Appeal to support the fmding that a lower court must engage a rigorous analysis of Rule 23' s requirements before a class may be certified and otherwise relying on the United States Supreme Court and district courts); Perrine v. E.1. du Pont de Nemours & Co., 225 W. Va. 482, 520-528, 694 S.E.2d 815,853-861 (2010) (relying on an unreported case from the United States District Court for the Northern District of West Virginia to explain "superiority" under Rule 23 and relying on cases from the 2d, 3d, and 6th circuits as well as other district courts in discussing class certification requiremencts.); GMS Mine Repair & Maint., Inc. v. Miklos, 238 W. Va. 707, 798 S.E.2d 833 (2017) (relying on cases from the D.C., 4th, 6th, 7th, 9th, and 11 th Circuit Courts of Appeal as well as district court opinions in discussing class certification requirements, including that a court may defer certifying a class so that parties can conduct discovery on class certification issues).
11
a. TYPICALITY
After reciting several points of law describing Rule 23' s typicality requirement, the
Circuit Court concluded:
Plaintiffs' claims rest on precisely the same legal and factual foundations as those of the class which they seek to represent. There are no significant legal or factual differences between Plaintiffs' claims and those of the proposed class members. Their interests are squarely aligned with the interests of the class members and his claims arise from the same course of conduct as the claims of the class members. Therefore, Plaintiffs have satisfied the typicality requirement of Rule 23(a).
Order ~ 32, App. R. at. 141-151. The Circuit Court did not analyze Plaintiffs' case under Rule
23 typicality, but only concluded that Plaintiff satisfied the requirement.
Under West Virginia law,
The "typicality" requirement of Rule 23(a)(3) of the West Virginia Rules of Civil Procedure requires that the "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." A representative party's claim or defense is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Rule 23(a)(3) only requires that the class representatives' claims be typical of the other class members' claims, not that the claims be identical. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment.
Syl. pt. 12, In re West Virginia Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003); Perrine v.
E.l. du Pont de Nemours & Co., 225 W. Va. 482, 524, 694 S.E.2d 815,857 (2010).
A court must determine whether Representative plaintiffs have causes of action before
deeming their claims typical of the class. This Court has clarified that '''a class cannot be
certified unless the named plaintiffs have a cause of action.'" GMS Mine Repair & Maint.,
Inc. v. Miklos, 238 W. Va. 707, 714, 798 S.E.2d 833, 840 (2017) (quoting Avery v. State Farm
12
Mut. Auto. Ins. Co., 216 Ill.2d 100, 296 Ill. Dec. 448, 835 N.E.2d 801, 827 (2005) (internal
citations omitted)) (emphasis added). The typicality requirement necessarily depends on each
Plaintiff having a cause of action because "'[ w ]here ... a putative class representative has no
valid claim in her own right, she cannot bring such a claim on behalf of a putative class.'" OMS
Mine Repair & Maint., Inc. v. Miklos, 238 W. Va. 707, 714, 798 S.E.2d 833, 840 (2017) (quoting
Addo v. Aliloska, No. 1-14-0765,2015 WL 9594034 (Ill. App. Ct. Dec. 31, 2015)). '''The class's
case depend[ s] on the class representatives' case. ", Id. (quoting Perrine v. E.l. du Pont de
Nemours and Co., 225 W.Va. 482, 694 S.E.2d 815 (2010) (Ketchum, 1., dissenting, in part,
concurring, in part). This Court has recognized "the fundamental flaw, and resulting unfairness,
of permitting a plaintiff to invoke the class action mechanism and its attendant procedures
without first establishing the existence of a viable claim." OMS Mine Repair & Maint., Inc. v.
Miklos, 238 W. Va. 707, 716, 798 S.E.2d 833, 842 (2017). Critically, "[a] class action does not
allow the class representative to avoid being confronted with the weaknesses in [his] own case."
Id. at 845 (citing Perrine, 225 W.Va. at 592-93,694 S.E.2d at 925-26 (Ketchum, J., dissenting,
in part, and concurring, in part)).
A court must engage in a rigorous, thorough analysis, to determine whether each cause of
action and the proofs thereon are suitable for class resolution. Rhodes v. E.l. du Pont Nemours &
Co., 253 F.R.D. 365, 372, 373 (S.D.W. Va. 2008) ("[P]laintiffs must demonstrate that each cause
of action asserted ... meets the class certification requirements .... [A] separate analysis of each
element is required, [and] the cause of action should also be evaluated as a whole.") Historically,
this Court has vacated class certifications when a Circuit Court engages in little or no analysis
and instead offers only conclusions.
13
For instance, in State of W Virginia ex rei. Chemtall Inc. v. Madden, 216 W. Va. 443,
607 S.E.2d 772 (2004), this Court vacated a class certification order because "the circuit court
clearly erred in failing to conduct a thorough analysis and in failing to set forth detailed and
specific findings to support the conclusion that the Respondents satisfied the requirements of
Rule 23(a)." Id. at 454, 783. Like the instant Circuit Court's order, the circuit court in Chemtall
offered only conclusions with no analysis. This Court explained, "[i]n the portion of the circuit
court's order that specifically discusses the four requirements of Rule 23(a), the circuit court
summarized the arguments for and against certification made by the parties, recited the
applicable law, and concluded .... " Id. This Court found the circuit court's order deficient with
respect to each Rule 23 requirement, concluding, "[i]n light of the above, this Court finds that the
circuit court's failure to conduct a thorough analysis and make specific and detailed findings on
whether the requirements of Rule 23(a) were met amounts to clear error." Id.
Similarly, in State ex reI. Erie Ins. Prop. & Cas. Co. v. Nibert, No. 11-0259,2011 W. Va.
LEXIS 288, at *1 (W. Va. June 14, 2011) (memorandum decision), this Court vacated a circuit
court's class certification order, finding that,
[a ]lthough the circuit court referenced, within its class certification order, each of the prerequisites to class certification established by Rule 23 of the West Virginia Rules of Civil Procedure, the court did not conduct the attendant detailed analysis that we have directed courts to perform incident to the certification of a class.
Id. at *10. Applying Chemtall's syllabus point 8 and Rule 23's requirements, this Court reasoned
and concluded:
In its underlying order, the circuit court correctly identified and addressed each factor required to exist before a class action may be maintained. However, the circuit court did not thoroughly evaluate each criterion as contemplated by Rule 23 and as required by Syllabus point 8 of Chemtall. Specifically, Chemtall requires "the class certification order should be detailed and specific in showing
14
the rule basis for the certification and the relevant facts supporting the legal conclusions." Here, however, the circuit court merely recited each prerequisite to class certification and summarized its finding that such criterion had been satisfied without specific explanation as to how the factor had been met. Conclusory summations, without further explanation, do not constitute the "detailed and specific . . . showing" required by our holding in Chemtall and are not sufficient to confer class status. Therefore, we grant as moulded the requested writ of prohibition to prevent the Circuit Court of Jackson County from enforcing its November 12, 2010, class certification order.
Id. at * 12-13 (internal citations omitted).
Like in Chemtall and Erie, here, the Circuit Court did not support its conclusions with
any analysis of Rule 23' s requirements. Like in Chemtall and Erie, the Circuit Court correctly
identified the prerequisites and recited the applicable law but did not properly evaluate the
criterion before making cursory conclusions that they had been satisfied. Pertinent to typicality,
the Circuit Court did not analyze whether the four representative Plaintiffs each have a cause of
action. Plaintiffs allege three causes of action: negligence, prima facie negligence, and medical
monitoring. To prove negligence and/or prima facie negligence, "it is incumbent upon the
plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A duty which
the defendant owes him; (2) A negligent breach of that duty; (3) injuries received thereby,
resulting proximately from the breach of that duty." Wheeling Park Comm'n v. Dattoli, 237 W.
Va. 275, 280, 787 S.E.2d 546, 551 (2016); Webb v. Brown & Williamson Tobacco Co., 121
W.Va. 115, 118,2 S.E.2d 898, 899 (1939). To prove a medical monitoring cause of action,
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
15
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.
Syl. pt. 3, Bower v. Westinghouse Elec. COlp., 206 W. Va. 133, 135,522 S.E.2d 424, 426 (1999).
Here, neither the Circuit Court nor Plaintiffs offered any support for a finding that each
Plaintiff has a cause of action. The Circuit Court discussed none of the elements of Plaintiffs'
claims and heard no evidence on Plaintiffs' claims. Rather, the Circuit Court's Order rests on
Plaintiffs' pleadings. As the United States Supreme Court has explained, Rule 23 is not a
pleading standard and mere allegations do not support class certification. See Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 349-52 (2011). Plaintiffs must affinnatively show that each cause
of action satisfies Rule 23. The Plaintiffs did not demonstrate that each Plaintiff has a cause of
action. Pleading a cause of action is not the same as affinnatively demonstrating one pursuant to
Rule 23. Not only have Plaintiffs failed to demonstrate that they each have causes of action, they
have failed to demonstrate that the causes of action are suitable for class resolution. Neither the
Plaintiffs nor the Circuit Court provided any analysis as to whether and how the claims, and each
element of the claim, satisfies Rule 23. The Circuit Court was clearly incorrect and substantially
abused its discretion when it certified the class without detennining whether each Plaintiff has a
cause of action. The Circuit Court was clearly wrong and abused its discretion when it concluded
that Plaintiffs' claims were typical of the class without any analysis of the claims.
b. COMMONALITY
After reciting several points of law describing Rule 23' s commonality requirement, the
Circuit Court concluded: "Given the nature of the claims in this case, class members share
overarching questions of both law and fact in relation to the class claim; as such, the
commonality prong of Rule 23 is satisfied." Order ~ 24, App. R. at. 141-151. This not analysis,
16
but a conclusion. As discussed supra, reciting the law and making conclusions without any
analysis is not the "thorough analysis" required by Rule 23 and progeny. Thus, the writ should
Issue.
To prove commonality, "[t]he class 'as a whole' must raise at least one common question
of law or fact to make adjudication of the issues as a class action appropriate to conserve judicial
and private resources." In re W Virginia Rezulin Litig., 214 W. Va. 52, 67, 585 S.E.2d 52, 67
(2003). This Court has stated in syllabus:
The "commonality" requirement of Rule 23(a)(2) of the West Virginia Rules of Civil Procedure [1998] requires that the party seeking class certification show that "there are questions of law or fact common to the class." A common nucleus of operative fact or law is usually enough to satisfy the commonality requirement. The threshold of "commonality" is not high, and requires only that the resolution of common questions affect all or a substantial number of the class members.
Syl. pt. 11, In re W Virginia Rezulin Litig., 214 W. Va. 52, 57, 585 S.E.2d 52, 57 (2003).
Like West Virginia law, United States Supreme Court precedent "instructs that plaintiffs
must present a common contention capable of being proven or disproven in 'one stroke' to
satisfy Rule 23(a)(2)'s commonality requirement. Thus, a class-wide proceeding must be able to
generate common answers that drive the litigation." Brown v. Nucor Corp., 785 F.3d 895, 908-
09 (4th Cir.2015) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)); Good v.
Am. Water Works Co., Inc., 310 F.R.D. 274, 294 (S.D.W. Va. 2015). The United States Supreme
Court has explained the commonality requirement:
Commonality requires the plaintiff to demonstrate that the class members "have suffered the same injury." This does not mean merely that they have all suffered a violation of the same provision oflaw .... "What matters to class certification ... is not the raising of common 'questions' ---even in droves-but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the
17
proposed class are what have the potential to impede the generation of common answers."
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-52 (2011) (internal citations and quotations
omitted). This Court has relied on Wal-Mart to support "the proposition that a violation of law as
a common issue may not support class certification in a setting where individualized fact-finding
is necessary." State ex reI. Erie Ins. Prop. & Cas. Co. v. Nibert, No. 16-0884,2017 WL 564160,
at *6 (W. Va. Feb. 13,2017).
In Rhodes v. E.I. du Pont Nemours & Co., 253 F.R.D. 365, 367 (S.D.W. Va. 2008), the
United States District Court for the Southern District of West Virginia, Judge Joseph R.
Goodwin presiding, addressed whether a class can be certified based on allegations of water
contamination and state law claims of negligence and medical monitoring. In Rhodes, plaintiffs
alleged that defendant DuPont contaminated the drinking water in the Parkersburg Water
District, causing toxic exposure to its customers. After the parties engaged in extensive
discovery, the plaintiffs moved the District Court to certify a class. The District Court held a
four-day hearing "to allow the court to ... not only conduct a 'rigorous analysis' at the class
certification stage, but also to protect absent class members' rights." Id. at 369.
The District Court ultimately denied plaintiffs' motion for class certification, noting,
"[t]he plaintiffs must demonstrate that each cause of action asserted against DuPont meets the
class certification requirements .. ,," Id. at 372. The District Court analyzed each of the six
elements for medical monitoring under Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522
S.E.2d 424, 430 (1999), stating "a separate analysis of each element is required, [and] the cause
of action should also be evaluated as a whole" for class certification purposes. Id. at 373. The
District Court analyzed whether proof of each element lent itself to class resolution and satisfied
Rule 23. The Court reasoned that, because medical monitoring requires such individualized 18
proof, such claims are not conducive to class resolution:
The plaintiffs have presented compelling evidence that exposure to C-8 may be hannful to human health, and the evidence certainly justifies the concerns expressed by the plaintiffs in this case. What the plaintiffs misunderstand, however, is what they must show in order for me to certify the class. I cannot certify a class based on some potential harm to the general public, rather, there must be specific injuries to each member of the proposed class. The fact that a public health risk may exist is more than enough to raise concern in the community and call government agencies to action, but it does not show the common individual injuries needed to certify a class action.
Id. at 367. The Court concluded:
Id. at 374.
I FIND that class certification is inappropriate for the claims raised in this case because they require individualized inquiries that are not conducive to common treatment as required by Rule 23. Though the plaintiffs could overcome that obstacle by demonstrating a plausible common method of proving their medical monitoring claim on a class-wide basis, they have not done so. Therefore, I DENY the plaintiffs' motion for class certification.
Other courts have held the same as Rhodes. "Proposed medical monitoring classes suffer
from cohesion difficulties, and numerous courts across the country have denied certification of
such classes." In re St. Jude Med., Inc., 425 F.3d 1116, 1122 (8th Cir.2005) (citing e.g., Ball v.
Union Carbide Corp., 385 F.3d 713, 727-28 (6th Cir.2004)); see Barnes v. Am. Tobacco Co.,
161 F.3d 127, 143-146 (3d Cir. 1998); Boughton v. Cotter Corp., 65 F.3d 823, 827 (lOth
Cir.1995). Quoting the Third Circuit, the Supreme Court in Windsor listed some of the individual
variations precluding class certification: "Exposure-only plaintiffs will also incur different
medical expenses because their monitoring and treatment will depend on singular circumstances
and individual medical histories." Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 624, (l997)
(affinning Third Circuit's refusal to certify class) (quoting Georgine v. Amchem Prod., Inc., 83 19
F.3d 610,626 (3d Cir. 1996)); In re St. Jude Med., Inc., 425 F.3d 1116,1122 (8th Cir. 2005).
Like in Rhodes, here the Plaintiffs have not satisfied their burden and have provided no
analysis as to how any of their causes of action, particularly the medical monitoring claim, are
common to the class. Plaintiffs' failure to do so is not surprising since only one Plaintiff has pled
any injury, and Plaintiffs have identified no class member who has suffered any injury. See App.
R. at. 1-11. [Int. No.8, CompI. ~ 8]. Plaintiffs have offered no proof that the one injury alleged
was caused by any chemicals in the Pineville water supply. As discussed with respect to
typicality, the representative Plaintiffs have not demonstrated that they each have a cause of
action. Because Plaintiffs have failed to demonstrate that they have a cause of action, it is
impossible to determine whether Plaintiffs' claims are common to the class.
In Rhodes, even after the plaintiffs engaged in extensive discovery and put on days-worth
of evidence, the plaintiffs could not satisfy Rule 23. In the case sub judice, unlike in Rhodes,
Plaintiffs put forth no evidence, and the Circuit Court put forth no analysis, yet we somehow
have a certified class. Most importantly, the Circuit Court underwent no analysis whatsoever to
conclude that Plaintiffs' claims were common to the class or that answers to common questions
will drive resolution of litigation. The Circuit Court analyzed no question of law or fact common
to the class; the Circuit Court failed to account for the individualized nature of medical
monitoring claims; and the Circuit Court did not even analyze the medical monitoring claims
under the commonality analysis or under any other Rule 23 prerequisite. The Circuit Court
erroneously found that the Plaintiffs and numerous class members have been injured-again,
Plaintiffs allege one injury and produced no evidence of that injury, much less any additional
injuries. Order ~ 2, App. R. at. 141-151. As discussed, the Circuit Court did not even analyze
whether each Plaintiff has a claim. Thus, the Circuit Court substantially abused its discretion and
20
clearly erred by certifying the class, and a writ is warranted.
c. NUMEROSITY
After reciting a few points of law explaining the numerosity requirement, the Circuit
Court's Order concluded: "The size and scope of the putative class is sufficiently large to
compel the conclusion that numerosity does lie, and that joinder of this many individuals is
impracticable. Therefore, Plaintiffs have satisfied the numerosity prong of Rule 23(a)." App. R.
at. 141-151. The Circuit Court offered no analysis of the numerosity requirement.
This Court has explained the numerosity requirement:
The numerosity provision of Rule 23(a)(1) of the West Virginia Rules of Civil Procedure [1998] requires that a class be so numerous that joinder of all of its members is "impracticable." It is not necessary to establish that joinder is impossible; rather, the test is impracticability. The test for impracticability of joining all members does not mean "impossibility" but only difficulty or inconvenience of joining all members.
Syl. pt. 9, In re W Virginia Rezulin Litig., 214 W. Va. 52, 56-57, 585 S.E.2d 52, 56-57 (2003).
While there is no '''magic minimum number that breathes life into a class ... and lack of
knowledge of the exact number of persons affected is not a bar to certification[,J''' the United
States Supreme Court has explained that "[t]he numerosity requirement requires examination of
the specific facts of each case .... " Id. at 65,65 (quoting Clarkson v. Coughlin, 783 F.Supp. 789,
798 (S.D.N.Y.1992)); Gen. Tel. Co. o/the Nw. v. Equal Employment Opportunity Comm'n, 446
U.S. 318, 330 (1980). This Court has explained repeatedly that
[ A] class action may only be certified if the trial court is satisfied, after a thorough analysis, that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil Procedure have been satisfied. Further, the class certification order should be detailed and specific in showing the rule basis for the certification and the relevant facts supporting the legal conclusions.
State o/W Virginia ex rei. Chemtall Inc. v. Madden, 216 W. Va. 443, 454, 607 S.E.2d 772, 783 21
(2004).
Similarly, the United States Supreme Court has explained that class certification cannot
rest on mere allegations; class action plaintiffs have the burden of satisfying the elements with
evidence, and the Court must rigorously analyze and make specific, detailed findings:
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question," and that certification is proper only if "the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Frequently that "rigorous analysis" will entail some overlap with the merits of the plaintiffs underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action. Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-52 (2011) (internal citations and quotations
omitted). The Court "must engage in 'rigorous analysis' to determine whether the proposed class
meets the Rule 23 requirements." Rhodes v. E.1. du Pont de Nemours & Co., 253 F.R.D. 365,
372 (S.D.W. Va. 2008); Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).
Here, the Plaintiffs presented no evidence to support their assertion that "[t]he number of
persons who are members of the Class ... is so numerous that joinder of all members in one
action is impracticable." CompI. ,-r 32, App. R. at. 1-11. Plaintiffs presented no evidence that the
"proposed class herein potentially consists of thousands of who [sic] were exposed to
carcinogenic water provided by Defendant between 2016-2018 .... " Mot. for Class Certif., App.
R. at. 12-23. The Circuit Court based its Order Granting Motion for Class Certification on
22
Plaintiffs' pleadings, mere allegations, and no affirmative support. The Circuit Court heard no
evidence on numerosity. More importantly, the Circuit Court employed no rigorous, thorough
analysis of the numerosity requirement, but rather, only concluded that members of the class are
numerous. Order,-r 17, App. R. at. 141-151. Therefore, the Circuit Court's class certification was
clearly wrong and an abuse of discretion.
In addition, as discussed supra, the representative Plaintiffs have not established that they
have claims, and the Court failed to address whether each Plaintiff has a claim. A class cannot be
so numerous to warrant certification if its representative parties cannot demonstrate that they
have viable causes of action. If the representative Plaintiffs cannot demonstrate that they have
claims, then the class members have no claims, and numerosity is none.
d. ADEQUACY OF REPRESENTATION
After reciting points of law that explain the adequacy requirement, the Circuit Court
concluded, "The absent class members are more than adequately represented by Plaintiffs, both
in similarity of interests and in zeal." The Circuit Court offered no analysis of the adequacy
requirement.
Under West Virginia law,
The "adequacy of representation" requirement of Rule 23(a)(4) requires that the party seeking class action status show that the "representative parties will fairly and adequately protect the interests of the class." "First, the adequacy of representation inquiry tests the qualifications of the counsel to represent the class. Second, it serves to uncover conflicts of interest between named parties and the class they seek to represent."
Syl. pt. 13, In re W Virginia Rezulin Litig., 214 W. Va. 52,68--69,585 S.E.2d 52, 68--69 (2003).
Petitioner does not dispute that Plaintiffs' counsel is qualified to represent the Plaintiffs.
However, Plaintiffs cannot fairly and adequately represent the class when Plaintiffs cannot
23
demonstrate that they each have a claim and that their claims are typical of and common to the
class. Also, because the Plaintiffs have failed and refused to engage in meaningful discovery and
because the Circuit Court certified a class without allowing for any meaningful discovery, it is
impossible to ascertain whether no conflicts exist to satisfy the second "adequacy of
representation" prerequisite. Moreover, the Circuit Court did not analyze the adequacy
prerequisite. Thus, the Circuit Court was clearly wrong and abused its discretion, and a writ
should issue.
e. PREDOMINANCE
In addition to the factors required under Rule 23(a), a party moving to certify a class must
also satisfy one of the three prerequisites in Rule 23(b). Here, the Circuit Court relied on Rule
23(b)(3), which states:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
After reciting Rule 23(b )(3) and quoting case law explaining the predominance
requirement, the Circuit Court concluded, "All class members are entitled to damages for
Defendant's failure to properly treat and monitor its water. Each of the legal issues arise from a
single course of action repeatedly taken by Defendant over a period of multiple years. Therefore,
24
the predominance requirement of Rule 23(b)(3) has been satisfied." Order ~ 46, App. R. at. 141-
151. The Court offered no analysis of Rule 23(b)(3)'s predominance prong. Order, App. R. at.
141-151.
This Court has explained: "[t]he predominance criterion in Rule 23(b)(3) is a corollary to
the 'commonality' requirement found in Rule 23(a)(2). While the 'commonality' requirement
simply requires a showing of common questions, the 'predominance' requirement requires a
showing that the common questions of law or fact outweigh individual questions." In re West
Virginia Rezulin Litig., 214 W.Va. at 71,585 S.E.2d at 71. Furthermore,
A conclusion on the issue of predominance requires an evaluation of the legal issues and the proof needed to establish them. As a matter of efficient judicial administration, the goal is to save time and money for the parties and the public and to promote consistent decisions for people with similar claims. The predominance requirement is not a rigid test, but rather contemplates a review of many factors, the central question being whether adjudication of the common issues in the particular suit has important and desirable advantages of judicial economy compared to all other issues, or when viewed by themselves.
Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 526, 694 S.E.2d 815, 859 (2010)
(internal citations omitted) (emphasis added).
The United States Supreme Court has explained how to distinguish individual issues from
common Issues:
The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. This calls upon courts to give careful scrutiny to the relation between common and individual questions in a case. An individual question is one where members of a proposed class will need to present evidence that varies from member to member, while a common question is one where the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-wide proof. The predominance inquiry asks whether the common, aggregation-enabling, issues in
25
the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (internal citations and quotation
marks omitted). The United States Supreme Court has further explained the importance of Rule
23(b)(3) analysis:
Rule 23 does not set forth a mere pleading standard. . .. Rule 23(b )(3) ... requires a court to find that "the questions of law or fact common to class members predominate over any questions affecting only individual members." Repeatedly, we have emphasized that it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Such an analysis will frequently entail overlap with the merits of the plaintiffs underlying claim." That is so because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.
The same analytical principles govern Rule 23(b). If anything, Rule 23(b )(3)'s predominance criterion is even more demanding than Rule 23(a). Rule 23(b )(3), as an adventuresome innovation, is designed for situations in which class-action treatment is not as clearly called for. That explains Congress's addition of procedural safeguards for (b )(3) class members beyond those provided for (b)(l) or (b)(2) class members (e.g., an opportunity to opt out), and the court's duty to take a "'close look'" at whether common questions predominate over individual ones.
Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013) (internal citations omitted); Good v. Am.
Water Works Co., Inc., 310 F.R.D. 274, 284 (S.D.W. Va. 2015) (relying on Comcast Corp. v.
Behrend). Considering whether "questions of law or fact common to class members
predominate" begins, of course, with the elements of the underlying cause of action. Erica P.
John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). Thus, West Virginia and United
States Supreme Court precedent require analysis of the causes of action and their proofs to 26
satisfy Rule 23(b)(3).
As demonstrated supra, the Plaintiffs supported and the Circuit Court analyzed none of
the claims, the claims' elements, or the proof needed to establish them. For instance, the Circuit
Court did not address medical monitoring claim proofs, such as, (1) whether each class member
was "significantly exposed" relative to the general population, (2) whether the exposure
increased the risk of disease in the context of each members' health history and circumstance, (3)
whether Petitioner proximately caused that risk to each class member, (3) whether the risk is
significant relative to what it would have been absent the exposure for each class member, (4)
whether and how each class member should be "monitored" considering their health history and
circumstance, and (5) whether the same monitoring procedures exist and are suitable for each
class member. The Circuit Court did not address the individualized negligence claim proofs,
such as, whether the class members have suffered the same injury by the same cause.
The Plaintiffs did not affirmatively establish that common issues outweigh these
individualized issues. Zero proof was offered on these key issues. Zero analysis supports the
Circuit Court's Order. The Circuit Court neither acknowledged nor analyzed these
individualized questions. The Circuit Court did not identify and parse out individual issues from
common issues. The Circuit Court did not analyze at all whether common issues predominate
over individual ones. The Circuit Court did not address other 23(b )(3) factors such as (1) whether
the class members have interests in litigating their own claims; (2) whether other class members
have already brought similar claims; (3) the undesirability of concentrating these claims in a
forum in which the class members reside; and (4) the difficulties to be encountered in managing
the class action. Thus, the Circuit Court was clearly wrong and abused its discretion in certifying
the class.
27
f. SUPERIORITY
After citing law that explains the superiority requirement, the Circuit Court concluded
Here, multiple lawsuits are infeasible, and a class is the superior method for resolving the claims at issue. For many class members, it is not feasible to maintain an individual action, as the time and money involved in bringing such an action are substantial. Without a class action, it is unlikely that the individual class members will receive any type of relief.
Order,-r53,App.R.at.141-151. -
Under West Virginia law, "Rule 23(b )(3) also requires a showing 'that a class action is
superior to other available methods for the fair and efficient adjudication of the controversy.'
This requirement focuses upon a comparison of available alternatives." In re W Virginia Rezulin
Litig., 214 W. Va. 52, 75, 585 S.E.2d 52, 75 (2003).
Putting aside that Plaintiffs have failed to establish that they each have claims and
considering the apparent outstanding and unanalyzed individual issues of fact and law, a class
action is not the superior method to litigate the claims here. There is no doubt that class actions
often encourage or force settlement; however, "[t]he right to defend yields to the need to settle."
State ex reI. Chemtall Inc. v. Madden, 221 W. Va. 415, 423, 655 S.E.2d 161, 169 (2007)
(Benjamin, 1., concurring, in part, dissenting, in part). It cannot be forgotten that a class action is
"an exception to the usual rule that litigation is conducted by and on behalf of the individual
named parties only." Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013); Califano v. Yamasaki,
442 U.S. 682, 700-701 (1979). Plaintiffs must affirmatively establish the exception by satisfying
Rule 23 just like the Court must thoroughly analyze each prerequisite to ensure the exception is
satisfied. Here, Plaintiffs made unsupported assertions, and the Court made cursory conclusions.
The exception to the rule has not been satisfied. Because the Plaintiffs did not affirmatively
establish the conjunctive Rule 23 prerequisites and because the Court did not at all analyze them, 28
a class action is neither appropriate nor superior. Finding otherwise, the Circuit Court abused its
discretion and was clearly wrong.
iii. THE CIRCUIT COURT ABUSED ITS DISCRETION IN CERTIFYING A CLASS
BEFORE THE PARTIES COULD ENGAGE IN MEANINGFUL DISCOVERY ON
CLASS CERTIFICATION ISSUES
The Circuit Court certified a class despite Petitioner's repeated pleas in its Response In
Opposition To Plaintiffs' Motion for Class Certification for adequate, meaningful discovery on
class certification issues.
Under West Virginia law, "where issues related to class certification are present,
reasonable discovery related to class certification issues is appropriate, particularly where the
pleadings and record do not sufficiently indicate the presence or absence of the requisite facts to
warrant an initial determination of class action status." Love v. Georgia Pac. Corp., 214 W. Va.
484, 488, 590 S.E.2d 677, 681 (2003). In Love, this Court found a circuit court abused its
discretion when the court denied the parties an opportunity to conduct discovery on class
certification issues before determining class certification. In Miklos, this Court recognized "the
fundamental flaw, and resulting unfairness, of permitting a plaintiff to invoke the class action
mechanism and its attendant procedures without first establishing the existence of a viable
claim." GMS Mine Repair & Maint., Inc. v. Miklos, 238 W. Va. 707, 716, 798 S.E.2d 833, 842
(2017).
Here, Plaintiffs' responses to Petitioner's discovery requests yielded no information or
documentation to support Plaintiffs' claims, much less class certification. Often, Plaintiffs'
responses refused to provide information, instead objecting to requests as "contention
interrogatories"-an objection that by definition requires additional discovery.4 App. R. at 25-46.
4 "Due to the nature of contention interrogatories, they are more appropriately used after a substantial amount of
29
[plaintiffs' discovery responses]. Thus, when Plaintiffs moved the Circuit Court to certify a
class, Petitioner objected and requested additional discovery, stating for example, "discovery in
this case has not been adequately provided to defendant to satisfy [the numerosity] requirement
as plaintiff consistently objected to numerous discovery interrogatories stating that defendant's
interrogatories 'may be more properly answered following an opportunity to conduct
discovery.'" App. R. at 47-140. [our response to motion]. Despite Petitioner's numerous
requests for discovery, the Circuit Court certified the class. Consequently, the Circuit Court had
no record upon which to base any analysis but could only make cursory conclusions in its Order
Granting Motion for Class Certification, as discussed supra. The Circuit Court abused its
discretion when it granted class certification without allowing the parties an opportunity to
conduct discovery.
B. PETITIONER Is PREJUDICED AND THERE Is No OTHER ADEQUATE REMEDY To
TIMELY CURE SUCH PREJUDICE UNDER WEST VIRGINIA LAW
Under West Virginia law, when "the petitioner has no plain, speedy, and adequate
remedy in the ordinary course of law" then "the remedy by appeal is usually deemed inadequate
in these situations, and prohibition is allowed." Hoover, 199 W. Va. at 21, 483 S.E.2d at 21.
"[A]n order awarding class action standing is ... reviewable, but only by writ of prohibition.
Syl. pt. 2, in part, McFoy v. Amerigas, Inc., 170 W. Va. 526, 527, 295 S.E.2d 16,18 (1982)
Having a class member preside as judge over this class action is prejudicial to this
Petitioner. Prejudice may very well be defined by such a scenario. Petitioner is and will continue
to be prejudiced by having to defend against diverse and deficient claims and sprawling factual
scenarios in one forum, with legal disputes determined by a class member judge. Rule 23 is not a
discovery has been conduct-typically at the end of the discovery period." See Kelly v. FedEx Ground Package System, Inc. 2011 WL 1584764 (S.D. W.Va. April 26, 2011) (internal citations omitted).
30
vehicle for the amalgamation of deficient claims, a myriad of proofs, and a hasty, unsupported
class certification based on the same. Lastly, under West Virginia law, Petitioner has no other
immediate recourse for contesting a class certification other than seeking a writ of prohibition.
Syl. pt. 2, in part, McFoy v. Amerigas, Inc., 170 W. Va. 526, 527, 295 S.E.2d 16, 18 (1982).
Thus, a writ should issue.
Dane J. . r II (WVSB # 7787) Evan S. Olds (WVSB # 12311)
PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC J amesMark Building 901 Quarrier Street Charleston, WV 25301 Telephone: (304) 344-0100 Facsimile: (304) 345-1545 Counsel for Defendant, Petitioner, Municipal Water Works
31
VERIFICATION
I, Duane 1. Ruggier II, being first duly sworn, state that I have read the foregoing
VERIFIED PETITION FOR WRIT OF PROHIBITION; that the factual representations
contained therein are true, except so far as they are stated to be on information and belief; and
that insofar as they are stated to be on information and belief, I believe them to be true.
Taken, subscribed, and sworn to before me this 26th day of April, 2019.
My Commission expires: 12/ S ) ;)0:2,6 •
OFFICIAL SE.A.L NOTARY PUBUC
ST." T£ OF WEST VIRG!NlA K!mberly S Bryant 113 Gra::eiand CirCle
SOo1h Cnarl!!ton, WV 25309 My CommiSSIon Expirll December 06, 2020
CERTIFICATE OF SERVICE
The undersigned, counsel of record, does hereby certify that I served this" Verified Petition
for Writ of Prohibition" and this "Appendix to Petition for Writ of Prohibition" on April 26,
2019, consistent with Rule 37 of the West Virginia Rules of Appellate Procedure, by having
deposited a true copy thereof in the United States mail, postage prepaid, addressed as follows:
Stephen P. New, Esq. P. O. Box 5516
Beckley, WV 25801 Counsel for Plaintiff
Adam D. Taylor, Esquire Taylor and Hinkle, Attorneys at Law, Inc.
United Bank Building Mezzanine Office
129 Main St. Beckley, WV 25801 Counsel for Plaintiff
Brian K. Cochran, Esq. Brewster, Morhous, Cameron, Caruth, Moore, Kersey & Stafford, PLLC
418 Bland Street P.O. Box 529
Bluefield, WV 2470
Du e J. Ru ier II (WVSB # 7787) Evan S. Olds (WVSB # 12311)
PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC J amesMark Building 901 Quarrier Street Charleston, WV 25301 Telephone: (304) 344-0100 Facsimile: (304) 345-1545 E-Mail: Counsel for Defendant, Petitioner, Municipal Water Works
