Perrine v. E.I. Du Pont De Nemours And Co.

• Decision Date: 26 March 2010
• Docket Number: 34335.,No. 34333,34334,34333
• Citation: 694 S.E.2d 815,225 W. Va. 482
• Court: West Virginia Supreme Court
• Parties: Lenora PERRINE; Carolyn Holbert; Waunona Messinger Crouser; Rebeccah Morlock; Anthony Beezel; Mary Montgomery; Mary Luzader; Truman R. Desist; Larry Beezel; and Joseph Bradshaw; individuals residing in West Virginia, on behalf of themselves and all others similarly situated, Plaintiffs below, Appellants in no. 34333, Appellees in nos. 34334 and 34335,v.E.I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation doing business in West Virginia; Meadowbrook Corporation, a dissolved West Virginia corporation; Matthiessen & Hegeler Zinc Company, Inc., a dissolved Illinois corporation formerly doing business in West Virginia; and T.L. Diamond & Company, Inc., a New York corporation doing business in West Virginia, Defendants below,E.I. du Pont de Nemours and Company, Appellee in no. 34333, Appellant in nos. 34344 and 34335.

225 W.Va. 482

694 S.E.2d 815

West Virginia.

Lenora PERRINE; Carolyn Holbert; Waunona Messinger Crouser; Rebeccah Morlock; Anthony Beezel; Mary Montgomery; Mary Luzader; Truman R. Desist; Larry Beezel; and Joseph Bradshaw; individuals residing in West Virginia, on behalf of themselves and all others similarly situated, Plaintiffs below, Appellantsin no. 34333, Appelleesin nos. 34334 and 34335,v.E.I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporationdoing business in West Virginia; Meadowbrook Corporation, a dissolved West Virginia corporation; Matthiessen & Hegeler Zinc Company, Inc., a dissolved Illinois corporation formerly doing business in West Virginia; and T.L. Diamond & Company, Inc., a New York corporationdoing business in West Virginia, Defendants below,E.I. du Pont de Nemours and Company, Appelleein no. 34333, Appellantin nos. 34344 and 34335.

Nos. 34333, 34334, 34335.

Supreme Court of Appeals of

Submitted April 7, 2009.

Decided March 26, 2010.

Petition for Rehearing Filed

June 2, 2010.

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Syllabus by The Court

1.If, on an appeal by a defendant from a final judgment, this Court determines that a circuit court erroneously found, as a matter of law, that the case was not barred by the statute of limitations, this Court may conditionally affirm the judgment and remand the case for a jury trial solely on the statute of limitations issue.While on remand, if the jury finds that the statute of limitations did not run, then the judgment in favor of the plaintiff stands; if the jury determines otherwise, the trial court must set aside the verdict and render judgment in favor of the defendant.

2.The standard of review for a trial court's admission of evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence involves a three-step analysis.First, we review for clear error the trial court's factual determination that there is sufficient evidence to show the other acts occurred.Second, we review de novo whether the trial court correctly found the evidence was admissible for a legitimate purpose.Third, we review for an abuse of discretion the trial court's conclusion that the “other acts” evidence is more probative than prejudicial under Rule 403.

3.An objection to a circuit court ruling that admits evidence must be timely made and must state the specific ground of the objection, if the specific ground is not apparent from the context.

4.Generally, this Court will apply an abuse of discretion standard when reviewing a trial court's decision regarding a verdict form.

5.Punitive damages may not be awarded on a cause of action for medical monitoring.

6.When this Court, or a trial court, reviews an award of punitive damages, the court must first evaluate whether the conduct of the defendant toward the plaintiff entitled the plaintiff to a punitive damage award under Mayer v. Frobe,40 W.Va. 246, 22 S.E. 58(1895), and its progeny.If a punitive damage award was justified, the court must then examine the amount of the award pursuant to the aggravating and mitigating criteria set out in Garnes v. Fleming Landfill, Inc.,186 W.Va. 656, 413 S.E.2d 897(1991), and the compensatory/punitive damage ratio established in TXO Production Corp. v. Alliance Resources Corp.,187 W.Va. 457, 419 S.E.2d 870(1992).

7.When a trial or appellate court reviews an award of punitive damages for excessiveness under Syllabus points 3 and 4 of Garnes v. Fleming Landfill, Inc.,186 W.Va. 656, 413 S.E.2d 897(1991), the court should first determine whether the amount of the punitive damages award is justified by aggravating evidence including, but not limited to: (1) the reprehensibility of the defendant's conduct; (2) whether the defendant profited from the wrongful conduct; (3) the financial position of the defendant; (4) the appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed; and (5) the cost of litigation to the plaintiff.The court should then consider whether a reduction in the amount of the punitive damages should be permitted due to mitigating evidence including, but not limited to: (1) whether the punitive damages bear a reasonable relationship to the harm that is likely to occur and/or has occurred as a result of the defendant's conduct; (2) whether punitive damages bear a reasonable relationship to compensatory damages; (3) the cost of litigation to the defendant; (4) any criminal sanctions imposed on the defendant for his conduct; (5) any other civil actions against the same defendant based upon the same conduct; (6) relevant information that was not available to the jury because it was unduly prejudicial to the defendant; and (7) additional relevant evidence.

8.A punitive damages award that is not constitutionally excessive under TXO Production Corp. v. Alliance Resources Corp.,187 W.Va. 457, 419 S.E.2d 870(1992), may nevertheless be reduced by a reviewing court when, in the discretion of the court, a reduction is warranted by mitigating evidence.

9.When a court grants a remittitur, the plaintiff must be given the option of either accepting the reduction in the verdict or electing a new trial.

R. Edison Hill, Hill, Peterson, Carper, Bee & Deitzler, PLLC, Charleston, WV, Gary W. Rich, Law Office of Gary W. Rich, LC, Morgantown, WV, Perry B. Jones, Jerald E. Jones, West & Jones, Clarksburg, WV, J. Farrest Taylor, Pro Hac Vice, Cochran, Cherry, Givens, Smith, Lane & Taylor, PC, Dothan, AL, for Plaintiffs, Lenora Perrine, et al.

Richard W. Gallagher, Mary E. Snead, Robinson & McElwee, Clarksburg, WV, William K. Dodds, Pro Hac Vice, Dechert, LLP, New York, NY, for T.L. Diamond & Company, Inc.

David B. Thomas, James S. Arnold, Stephanie D. Thacker, Allen, Guthrie & Thomas, PLLC, Charleston, WV, Jeffrey A. Hall, Pro Hac Vice, Bartlit, Beck, Herman, Palenchar & Scott, LLP, Chicago, IL, for Defendant, E.I. du Pont de Nemours and Company.

Carte P. Goodwin, Jonathan S. Deem, Office of the Governor, Charleston, WV, for Amicus Curiae, The Hon. Joe Manchin, III, Governor.

Michele Grinberg, J. Dustin Dillard, Flaherty, Sensabaugh & Bonasso, PLLC, Charleston, WV, Tillman J. Breckenridge, Pro Hac Vice, Fulbright & Jaworski, LLP, Washington, District of Columbia, for Amicus Curiae, The West Virginia State Medical Association.

Thomas W. Rodd, The Calwell Practice, Charleston, WV, for Amicus Curiae, The West Virginia Citizen Action Group.

ALAN D. MOATS, Judge:

This environmental class action is before this Court upon three separate appeals seeking review of a series of jury verdicts, orders, and rulings by the Circuit Court of Harrison County, West Virginia.In the underlying class action, E.I. du Pont de Nemours and Company, a defendant below (hereinafter referred to as “DuPont”), was found to be liable to class members in the approximate amount of $381,737,522 for off-site arsenic, cadmium, and lead contamination which emanated from DuPont's zinc smelter facility in Spelter, West Virginia.The class consists of a property class and an overlapping medical monitoring class.The $381,737,522 amount includes the following: (1) $55,537,522 for soil and structural remediation, (2) an estimated cost of $130,000,000 for medical monitoring, and (3) $196,200,000 in punitive damages.

On September 25, 2008, this Court granted the three appeals and ordered that they be consolidated for purposes of argument, consideration, and decision.¹This Court has heard the oral arguments of the parties to this appeal, and has before it their briefs, all matters of record, and amicus curiae briefs from the West Virginia State Medical Association, the West Virginia Citizen Action Group, and the Honorable Joe Manchin, III, Governor of the State of West Virginia.²

In Supreme Court appeal no. 34334, DuPont appeals from orders of the circuit court entered on February 25, 2008, denying DuPont's motions for judgment as a matter of law or, in the alternative, to decertify the class; for a new trial; for relief concerning the scope, duration and cost of the medical monitoring plan; and to vacate or reduce the award of punitive damages.Specifically, DuPont contends that the circuit court erred by (1) granting summary judgment in favor of the Plaintiffs on the issue of the statute of limitations; (2) certifying this case as a class action; (3) admitting certain evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence;(4) qualifying Dr. Kirk Brown as an expert witness for the Plaintiffs and allowing his testimony; (5) adopting a verdict form and allowing certain instructions that permitted the jury to apply inaccurate standards of law; (6) accepting a medical monitoring verdict that was not supported by the evidence; and (7) awarding punitive damages.After thorough consideration of these issues, we conclude that the circuit court's order on the issue of the statute of limitations is reversed; however, the verdict (as modified by this opinion) is conditionally affirmed and this case is remanded with directions to the circuit court to hold a jury trial on the sole issue of when the Plaintiffs possessed the requisite knowledge to trigger the running of the statute of limitations.³Should the statute of limitations issue be resolved in favor of the Plaintiffs on remand, the remaining issues pertaining to liability and compensatory relief are affirmed, but we reverse the punitive damages award.With regard to the punitive damages award, we first conclude that punitive damages are not proper in connection with a claim for medical monitoring and therefore reduce the punitive damages award by forty percent.In addition, we find that mitigating circumstances warranted a reduction in the punitive damages award. ...