State ex rel. Almond v. Murensky
| Decision Date | 14 November 2016 |
| Docket Number | No. 16-0607,16-0607 |
| Citation | 794 S.E.2d 10,238 W.Va. 289 |
| Court | West Virginia Supreme Court |
| Parties | State ex rel. Betty J. Almond, et al., Plaintiffs Below, Petitioners v. The Honorable Rudolph Murensky, Mcdowell County Circuit Court Judge, and Pfizer, Inc., Defendant Below, Respondent |
J. Jeaneen Legato, Esq., Legato Law, PLLC, Charleston, West Virginia, H. Blair Hahn, Esq. (Pro Hac Vice), Christiaan A. Marcum, Esq. (Pro Hac Vice), Aaron R. Dias, Esq. (Pro Hac Vice), Richardson, Patrick, Westbrook & Brickman, LLC, Mount Pleasant, South Carolina, Counsel for Petitioners.
Michael J. Farrell, Esq., Erik W. Legg, Esq., Megan Farrell Woodyard, Esq., Farrell, White & Legg, PLLC, Huntington, West Virginia, Mark S. Cheffo, Esq. (Pro Hac Vice), Quinn, Emanuel, Urquhart, & Sullivan, LLP, New York, New York, Counsel for Respondents.
The Petitioners1 in this matter seek a writ of prohibition to prevent the Circuit Court of McDowell County, West Virginia, from enforcing its order granting the Respondent Pfizer, Inc.'s motion to dismiss the non-West Virginia plaintiffs from the underlying personal injury litigation on the ground of forum non conveniens. Subsequent to this Court's thorough review of the briefs, the arguments of counsel, the record submitted, and applicable precedent, we deny the requested writ.
This civil action, involving products liability and negligence claims regarding plaintiffs' use of the medication, Lipitor
, was initiated on September 4, 2013, with the filing of a complaint by fourteen plaintiffs, including ten from West Virginia and four from New York. These plaintiffs alleged they developed diabetes after taking Lipitor, a drug manufactured by Pfizer. An amended complaint was filed on October 3, 2013, adding twenty-six plaintiffs from Texas. The non-West Virginia plaintiffs do not allege they were prescribed Pfizer's medication, Lipitor, in West Virginia, developed diabetes in West Virginia, or have any other connection to West Virginia. Pfizer is a Delaware corporation based in New York.
On October 11, 2013, Pfizer removed this action to the United States District Court for the Southern District of West Virginia, based on a diversity argument. In December 2013, the federal court remanded the matter back to state court.2 Pfizer filed answers in both federal and state courts, including inconvenient forum as an affirmative defense.
In March 2014, Pfizer requested that this case be referred to the West Virginia Mass Litigation Panel. Pfizer withdrew that request in June 2014, based upon the request by then-Chief Justice Davis of this Court for supplemental briefing in light of the May 27, 2014, decision in State ex rel. J.C. v. Mazzone , 233 W.Va. 457, 759 S.E.2d 200 (2014) (Mazzone I ). In Mazzone I , this Court granted a writ of prohibition and found that a single complaint with multiple plaintiffs does not satisfy the definition of "mass litigation" and therefore does not qualify for referral to the Mass Litigation Panel.
Subsequent to Pfizer's unsuccessful attempts to transfer the litigation to federal court or the Mass Litigation Panel, a telephonic status conference between the parties was conducted on November 21, 2014. During the conference, the parties engaged in discussions regarding scheduling of the case in the Circuit Court of McDowell County, and the circuit court ultimately ordered the parties to negotiate a proposed scheduling order, detailing discovery matters preceding a May 2016 trial date. By August 2015, the parties had not yet agreed to a scheduling order; they eventually submitted opposing proposed scheduling orders.3
Consequently, the circuit court held a status conference on August 11, 2015. During that conference, counsel for Pfizer discussed Pfizer's intention to file a motion to dismiss on grounds of forum non conveniens and specifically asked the circuit court to include a deadline for such a motion in its scheduling order. By order dated August 14, 2015, the circuit court entered a scheduling order establishing a September 1, 2015, deadline for dispositive motions. Paragraph five of the circuit court's scheduling order provided as follows: 4
In compliance with the deadline enumerated in the scheduling order,5 Pfizer filed a motion to dismiss, on the grounds of forum non conveniens, on September 1, 2015. The plaintiffs asserted the motion was untimely filed, and the circuit court heard arguments on October 29, 2015.6
By order dated June 16, 2016, the circuit court granted Pfizer's forum non conveniens motion, dismissing the non-West Virginia plaintiffs. In the dismissal order, the circuit court found that the motion was timely because it was filed within the timeframe for such dispositive motions, as delineated in the circuit court's scheduling order. Specifically, the circuit court held:
W.Va. Code § 56-1-1a(b) (emphasis supplied).
The circuit court further explained that "[e]ven if the motion was not timely filed [pursuant to the scheduling order], this Court would still find that Pfizer's motion is timely because there is ‘good cause shown’ to ‘extend the period for the filing of such a motion.’ " The circuit court held: "To the extent that an extension for good cause shown was necessary, the Court concludes that Pfizer has demonstrated good cause based on the history of this litigation, the record of communications between the parties, and the absence of any prejudice to Plaintiffs."7 In examining the basis for the extension of time, the circuit court relied upon this Court's holding in syllabus point two of Caruso v. Pearce , 223 W.Va. 544, 546, 678 S.E.2d 50, 54 (2009) :
Rule 16(b) of the West Virginia Rules of Civil Procedure [1998] requires active judicial management of a case, and mandates that a trial court "shall ... enter a scheduling order" establishing time frames for the joinder of parties, the amendment of pleadings, the completion of discovery, the filing of dispositive motions, and generally guiding the parties toward a prompt, fair and cost-effective resolution of the case.
The circuit court observed that "[a] party may establish good cause for extending a statutory deadline in the interest of justice and based on the procedural history and circumstances in a given case." The circuit court also found that under Caruso and Rule 16 of the West Virginia Rules of Civil Procedure, trial courts "can and should design case-specific plans, including with respect to deadlines to file and hear motions."
Having determined that Pfizer's motion to dismiss was timely filed, the circuit court proceeded to address the substantive issue of forum non conveniens and evaluated the eight factors set forth in the forum non conveniens statute, West Virginia Code § 56-1-1a(a)(1-8), as well as the degree of deference to be accorded to the non-resident plaintiffs' choice of forum under the statute. Finding that West Virginia was not the appropriate forum for the non-West Virginia plaintiffs, the circuit court dismissed those plaintiffs from the underlying civil action.8
On June 27, 2016, the plaintiffs filed a petition for writ of prohibition to prevent the circuit court from enforcing its order granting Pfizer's motion to dismiss. This Court issued a rule to show cause on August 30, 2016, and oral argument was heard on October 4, 2016.
The extraordinary remedy of a writ of prohibition is to be used sparingly. State ex rel. Suriano v. Gaughan , 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996). Moreover, a writ of prohibition is not a device designed to correct a simple abuse of a circuit court's discretion. In syllabus point two of State ex rel. Peacher v. Sencindiver , 160 W.Va. 314, 233 S.E.2d 425 (1977), this Court explained:
In the pertinent part of syllabus point one of Hinkle v. Black , 164 W.Va. 112, 262 S.E.2d 744 (1979), superseded by statute on other grounds as stated in State ex rel. Thornhill Group, Inc. v. King , 233 W.Va. 564, 759 S.E.2d 795 (2014), we held:
[T]his 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.
This Court's precise guidance for determining whether a writ of prohibition should issue in a given case was enunciated in syllabus point four of State ex rel. Hoover v. Berger , 199 W.Va. 12, 14–15, 483 S.E.2d 12, 14–15 (1996) :
In determining whether to entertain and issue the writ of prohibition...
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