State ex rel. Chemtall Inc. v. Madden, 31743.

Decision Date02 December 2004
Docket NumberNo. 31743.,31743.
Citation607 S.E.2d 772,216 W.Va. 443
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. CHEMTALL INCORPORATED, Ciba Specialty Chemicals Corporation, Cytec Industries, Inc., G.E. Betz, Inc., Hychem, Inc., Ondeo Nalco Company, Stockhausen, Inc., Zinkan Enterprises, Inc., John Doe Manufacturing and/or Distributing Company, John Ceslovnik, Robert McKinley, Eulis Daniels, John Doe Company Representatives for Chemtall Incorporated, Ciba Specialty Chemical Corporation, Cytec Industries, Inc., G.E. Betz, Inc., Hychem, Inc., Ondeo Nalco Company, Stockhausen, Inc., Zinkan Enterprises, Inc., Petitioners, v. The Honorable John T. MADDEN, Judge of the Circuit Court of Marshall County; and All Plaintiffs in Stern, et al. v. Chemtall, Inc., et al., Civil Action No. 03-C-49M, Respondents

607 S.E.2d 772
216 W.Va. 443

STATE of West Virginia ex rel. CHEMTALL INCORPORATED, Ciba Specialty Chemicals Corporation, Cytec Industries, Inc., G.E. Betz, Inc., Hychem, Inc., Ondeo Nalco Company, Stockhausen, Inc., Zinkan Enterprises, Inc., John Doe Manufacturing and/or Distributing Company, John Ceslovnik, Robert McKinley, Eulis Daniels, John Doe Company Representatives for Chemtall Incorporated, Ciba Specialty Chemical Corporation, Cytec Industries, Inc., G.E. Betz, Inc., Hychem, Inc., Ondeo Nalco Company, Stockhausen, Inc., Zinkan Enterprises, Inc., Petitioners,
v.
The Honorable John T. MADDEN, Judge of the Circuit Court of Marshall County; and All Plaintiffs in Stern, et al. v. Chemtall, Inc., et al., Civil Action No. 03-C-49M, Respondents

No. 31743.

Supreme Court of Appeals of West Virginia.

Submitted: September 1, 2004.

Filed: December 2, 2004.


607 S.E.2d 777
Landers P. Bonenberger, Esq., Jeffrey A. Holmstrand, Esq., McDermott & Bonenberger, PLLC, Wheeling, for Chemtall Incorporated

David K. Hendrickson, Esq., Hendrickson & Long, PLLC, Charleston, for GE Betz, Inc.

Joseph W. Selep, Esq., Zimmer Kunz, Pittsburgh, PA, for Hychem, Inc.

Heather Heiskell Jones, Esq., Andrew P. Arbogast, Esq., Spilman Thomas & Battle, PLLC, Charleston, for Cytec Industries, Inc.

Denise D. Klug, Esq., Thorp Reed & Armstrong, LLP, Wheeling, for Eulis Daniels, et al.

Harry G. Shaffer, III, Esq., Shaffer & Shaffer, PLLC, Madison, for Ciba Specialty Chemicals Corp.

Charles M. Love, Esq., Bowles Rice McDavid Graff & Love, Charleston, for Stockhausen, Inc.

Robert P. Martin, Esq., Todd M. Sponseller, Esq., Campbell, Woods, Bagley, Emerson, McNeer & Herndon, PLLC, Charleston, for Zinkan Enterprises.

Herman D. Lantz, Esq., Prosecuting Attorney, Moundsville, R. Dean Hartley, Esq., J. Zachary Zatezalo, Esq., Hartley & O'Brien, PLLC, Wheeling, E. William Harvitt, Esq., Harvitt & Schwartz. LC, Charleston, Bradley Oldaker, Esq., Wilson & Bailey, PLLC, Weston, for Respondents.

Fred Adkins, Esq., Marc E. Williams, Esq., Robert L. Massie, Esq., J. David Bolen, Esq., Alexander C. Ward, Esq., Huddleston Bolen, LLP, for Amicus Curiae Defense Trial Counsel of WV.

Kenneth S. Geller, Esq., Miriam R. Nemetz, Esq., Carl J. Summers, Esq., Mayer, Brown, Rowe & Maw, LLP, S. Jane Anderson, Esq., Dickie, McCamey & Chilcote, PC, Hugh F. Young, Esq., for Amicus Curiae Product Liability Advisory Council, Inc.

Victor E. Schwartz, Esq., Leah Lorber, Esq., Emily J. Laird, Esq., Shook, Hardy & Bacon, LLP, Elliot G. Hicks, Esq., Hawkins & Parnell, LLP, for Amici Curiae West Virginia Manufacturers Assoc.; National Assoc. of Manufacturers; Chamber of Commerce of the U.S.; American Chemistry Council; Coalition for Litigation Justice, Inc.; and Property Casualty Insurers Assoc. of America.

Grant Crandall, Esq., for Amicus Curiae United Mine Workers of America.

MAYNARD, Chief Justice.

Petitioners, eight corporations who have manufactured, distributed, and/or sold polyacrylamide to coal preparation plants, seek relief through prohibition from the September 26, 2003, order of the Circuit Court of Marshall County that certified a seven-state class action for medical monitoring and punitive damages arising out of the alleged exposure to polyacrylamide of Respondents who are coal preparation plant workers and the offspring of such workers. For the reasons set forth below, we grant a writ of prohibition as moulded.

I.

FACTS

Respondents and plaintiffs below are representative coal preparation plant workers

607 S.E.2d 778
who allegedly have been exposed to residual acrylamide monomer in polyacrylamide. Petitioners and defendants below are the manufacturers, distributors, and representatives of polyacrylamide. On March 5, 2003, Respondents William K. Stern, Leonard A. Snyder, Michael Caputo, Terry Tucker, Michael E. Romada, Rodney Ferrell, William Thomas Adkins, II, Jonathan Paul Spencer, and John Doe filed a class action complaint in the Circuit Court of Marshall County on behalf of a class consisting of themselves and all other persons who have had inhalation, ingestion and/or dermal exposure to acrylamide while working in coal preparation plants in West Virginia, Illinois, Indiana, Ohio, Pennsylvania, Tennessee, and Virginia, as well as the offspring of those workers. The complaint was filed against Petitioners Chemtall Inc., a Georgia corporation; CIBA Specialty Chemicals Corporation, a Delaware corporation and successor in interest to Allied Colloids, Inc.; Cytec Industries, Inc., a Delaware corporation and successor in interest to American Cyanamid; G.E. Betz, Inc., a Pennsylvania corporation and successor in interest to Betzdearborn, Inc.; Hychem, Inc., a Florida corporation; Ondeo Nalco Company, a Delaware corporation; Stockhausen, Inc., a North Carolina corporation; Zinkan Enterprises, Inc., an Ohio corporation and successor in interest to O'Brien Industries, Inc.; and John Doe Manufacturing and Distributing Company

In their complaint, Respondents aver that Petitioners manufactured, supplied, re-sold and/or distributed polyacrylamide for use in coal preparation plants in West Virginia and other states. Respondents explain that polyacrylamide is a flocculant which is continually added to the water used to wash coal so that the water can be recycled. According to Respondents, although polyacrylamide is nontoxic, it contains acrylamide monomer, a toxic which has been linked to neurologic and reproductive injuries and disease including certain types of cancer.

All of the representative plaintiffs either worked in a coal preparation facility in West Virginia or are the children of such workers.1 The proposed class consists of all persons who have worked in coal preparation plants in West Virginia, Illinois, Indiana, Ohio, Pennsylvania, Tennessee, and Virginia who have had significant inhalation, ingestion and/or dermal exposure to polyacrylamide flocculants with residual acrylamide monomer and who are at significantly increased risk for sensory or autonomic nervous system deficits, various types of cancers, and genetic abnormalities and/or genetic diseases.2 The proposed class also consists of the offspring of these persons who are at increased risk of developing genetic abnormalities and diseases. Respondents allege causes of action for strict liability, medical monitoring, and punitive damages.

By order of September 26, 2003, the circuit court granted Respondents' motion for class certification under West Virginia Rules of Civil Procedure 23(b)(2) and 23(b)(3), and certified the classes of:

[A]ll persons who have worked in coal preparation plants in West Virginia, Illinois, Indiana, Ohio, Pennsylvania, Tennessee and Virginia, who have had significant inhalation, ingestion and/or dermal exposure to polyacrylamide flocculants with residual acrylamide monomer and who are at significantly increased risk for sensory or autonomic nervous system deficits ... cancer ... genetic abnormalities and/or genetic diseases ... as a result of the exposure; [and]
[T]he offspring of persons who have worked in coal preparation plants in West Virginia, Illinois, Indiana, Ohio, Pennsylvania, Tennessee and Virginia, who have had significant inhalation, ingestion and/or dermal exposure to polyacrylamide flocculants
607 S.E.2d 779
with residual acrylamide monomer and who are at an increased risk for developing genetic abnormalities and/or genetic diseases ... as a result of the exposure.

According to the circuit court's order, the class is to proceed as a medical monitoring class action as to all issues relating to Petitioners' liability, Respondents' claims for equitable and injunctive relief, and Petitioners' liability for punitive damages. After the circuit court entered its September 26, 2003, order, Respondents requested to proceed only under Rule 23(b)(2), and the circuit court granted the request. On April 13, 2004, Petitioners filed their petition for a writ of prohibition and/or mandamus with this Court in which they challenge the class certification.

II.

STANDARD OF REVIEW

As noted above, the petition herein is brought in prohibition and/or mandamus. We have previously recognized that "[w]rits of prohibition offer a procedure ... preferable to an appeal for challenging an improvident award of class standing." McFoy v. Amerigas, Inc., 170 W.Va. 526, 532, 295 S.E.2d 16, 22 (1982). Accordingly, we will treat the petition as one in prohibition.

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). We will now consider the circuit court's class certification order in light of this standard.

III.

DISCUSSION

At the outset, it is important to note that Petitioners challenge only the circuit court's ruling certifying a class covering the six states outside of West Virginia, and focus only on alleged due process infirmities in the circuit...

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