State ex rel. 3M Co. v. Hoke, 112320 WVSC, 20-0014

Docket Nº:20-0014
Opinion Judge:HUTCHISON JUSTICE
Party Name:STATE OF WEST VIRGINIA, EX REL. 3M COMPANY, F/K/A MINNESOTA MINING AND MANUFACTURING COMPANY, MINE SAFETY APPLIANCES COMPANY, and AMERICAN OPTICAL CORPORATION, Petitioners v. HONORABLE JAY HOKE, JUDGE OF THE CIRCUIT COURT OF LINCOLN COUNTY, and STATE OF WEST VIRGINIA ex rel. PATRICK MORRISEY, ATTORNEY GENERAL, Respondents
Judge Panel:Jenkins, Justice, concurring, joined by Chief Justice Armstead: I am authorized to state that Chief Justice Armstead joins in this separate opinion.
Case Date:November 23, 2020
Court:Supreme Court of Appeals of West Virginia

STATE OF WEST VIRGINIA, EX REL. 3M COMPANY, F/K/A MINNESOTA MINING AND MANUFACTURING COMPANY, MINE SAFETY APPLIANCES COMPANY, and AMERICAN OPTICAL CORPORATION, Petitioners

v.

HONORABLE JAY HOKE, JUDGE OF THE CIRCUIT COURT OF LINCOLN COUNTY, and STATE OF WEST VIRGINIA ex rel. PATRICK MORRISEY, ATTORNEY GENERAL, Respondents

No. 20-0014

Supreme Court of Appeals of West Virginia

November 23, 2020

Submitted: September 2, 2020

Petition for a Writ of Prohibition WRIT DENIED.

SYLLABUS BY THE COURT

1. "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).

2. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

3. "Where a cause of action is based on tort or on a claim of fraud, the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury." Syllabus Point 3, Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990).

4. "In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury." Syllabus Point 4, Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

5. "Under the discovery rule set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), whether a plaintiff 'knows of' or 'discovered' a cause of action is an objective test. The plaintiff is charged with knowledge of the factual, rather than the legal, basis for the action. This objective test focuses upon whether a reasonable prudent person would have known, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action." Syllabus Point 4, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

6. "A five-step analysis should be applied to determine whether a cause of action is time-barred. First, the court should identify the applicable statute of limitation for each cause of action. Second, the court (or, if questions of material fact exist, the jury) should identify when the requisite elements of the cause of action occurred. Third, the discovery rule should be applied to determine when the statute of limitation began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). Fourth, if the plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action. Whenever a plaintiff is able to show that the defendant fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the potential cause of action, the statute of limitation is tolled. And fifth, the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine. Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact." Syllabus Point 5, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

7. "Statutes which are remedial in their very nature should be liberally construed to effectuate their purpose." Syllabus Point 6, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953).

8. Under the West Virginia Consumer Credit and Protection Act, a cause of action by the Attorney General accrues, and the statute of limitation in West Virginia Code § 46A-7-111(2) (1999) begins to run, from the time the Attorney General discovers or reasonably should have discovered the deception, fraud, or other unlawful conduct supporting the action. Determining that point in time is generally a question of fact.

OPINION

HUTCHISON JUSTICE

In this petition for a writ of prohibition, we are asked to review a routine circuit court order permitting the Attorney General of West Virginia ("Attorney General") to amend a complaint, and granting the Attorney General's motion to sever the counts in the complaint for discovery and trial. In part, the circuit court's order permits the parties to conduct discovery regarding whether the discovery rule tolled the statute of limitation on the Attorney General's claim that the defendants violated the West Virginia Consumer Credit and Protection Act ("the CCPA"). The order also allows the parties to discover and present evidence on whether the defendants committed multiple, willful violations of the CCPA, such that the circuit court might consider imposing multiple civil penalties.

This Court has "clearly stated that extraordinary remedies [like the writ of prohibition] are reserved for really extraordinary causes" and "are not available in routine circumstances." State ex rel. Vanderra Res., LLC v. Hummel, 242 W.Va. 35, 40, 829 S.E.2d 35, 40 (2019) (cleaned up). The circuit court's order is preliminary, and merely permits the parties to conduct discovery and raise detailed arguments on a developed record at the summary judgment stage. As we discuss below, we see nothing to say the circuit court erred as a matter of law, let alone exceeded its legitimate powers. Accordingly, we deny the defendants' petition for a writ of prohibition.

I. Factual and Procedural Background

The Attorney General filed the instant case in August 2003, against three defendants (who are the petitioners before this Court): 3M Company (formerly known as Minnesota Mining and Manufacturing Company); Mine Safety Appliances Company; and American Optical Corporation. The Attorney General amended the complaint in 2005, but the allegations in the amended complaint are like those in the original complaint.

The central allegation in the Attorney General's case is that each of the defendants designed, manufactured, and then delivered respirators and dust masks in West Virginia that did not do what they were supposed to do: protect workers from dust-related illnesses. The Attorney General asserts that each defendant knew its products did not work as advertised. Despite that knowledge, each defendant engaged in a scheme to hide, from both employers and workers, the limitations and defects of their own products as well as those they discovered in the products of the other defendants and competitors. The Attorney General claims that "the design of the [defendants'] respirators/dust masks was so poor and negligent that it encouraged non-use."

The Attorney General asserted six different causes of action against the defendants, claims that fall into two categories. In the first category, the Attorney General asserted five broad, tort-based causes of action: negligence, strict liability, breach of implied warranty, negligent misrepresentation, and a claim for punitive damages.1

Second, and important to our review, the Attorney General contended that the defendants had violated the CCPA.[2] The Attorney General maintained that the defendants "made untrue, deceptive or misleading representations of material facts . . . and omitted and/or concealed material facts . . . regarding the appropriate use and safety of their respiratory protection devices." These "misrepresentations and omissions" by the defendants were, according to the Attorney General, "likely to and did deceive and/or confuse West Virginia citizens, employers and their employees into...

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