State ex rel. Am. Elec. Power Co. v. Swope

• Decision Date: 14 June 2017
• Docket Number: No. 16-1148,16-1148
• Citation: 801 S.E.2d 485
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia EX REL. AMERICAN ELECTRIC POWER CO., INC.; American Electric Power Service Corporation; Ohio Power Company and Doug Workman, Defendants Below, Petitioners v. The Honorable Derek C. SWOPE, Lead Presiding Judge, Gavin Landfill Litigation, Mass Litigation Panel, The Estate of Bobby Clary, by Joy Clary, et al., Plaintiffs Below, Respondents

801 S.E.2d 485

STATE of West Virginia EX REL. AMERICAN ELECTRIC POWER CO., INC.; American Electric Power Service Corporation; Ohio Power Company and Doug Workman, Defendants Below, Petitioners

v.The Honorable Derek C. SWOPE, Lead Presiding Judge, Gavin Landfill Litigation, Mass Litigation Panel, The Estate of Bobby Clary, by Joy Clary, et al., Plaintiffs Below, Respondents

No. 16-1148

Supreme Court of Appeals of West Virginia.

Submitted: March 8, 2017

Filed: June 14, 2017

James W. Turner, Esq., Ancil G. Ramey, Esq., Jessica L. Wiley, Esq., STEPTOE & JOHNSON PLLC, Huntington, West Virginia, Counsel for Petitioners

Christopher J. Regan, Esq., J. Zachary Zatezalo, Esq., Laura P. Pollard, Esq., BORDAS & BORDAS, PLLC, Wheeling, West Virginia, Counsel for Respondents

L. David Duffield, Esq., Chad S. Lovejoy, Esq., Duffield, Lovejoy, Stemple & Boggs, PLLC, Huntington, West Virginia, Counsel for Respondents

WALKER, Justice:

Petitioners American Electric Power Company, Inc., American Electric Power Service Corporation, Ohio Power Company, and Doug Workman ("Petitioners") invoke this Court's original jurisdiction seeking a writ of prohibition to prohibit the Mass Litigation Panel ("MLP") from enforcing its order denying a motion to dismiss twelve plaintiffs who allege that they suffered injury as a result of "take-home" exposure in the Coal Combustion Residuals ("CCR") mass litigation.¹ Petitioners contend that the MLP's determination that Ohio's Mixed Dust Statute² is contrary to West Virginia public policy was clearly erroneous and that the application of West Virginia substantive law to the NWDC Plaintiffs' claims violates Petitioners' due process rights. Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we grant the writ of prohibition and remand this matter for further proceedings consistent with this Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case was previously before this Court in State ex rel. AEP v. Nibert , 237 W.Va. 14, 784 S.E.2d 713 (2016) ("AEP I "). In the prior case, Petitioners filed a writ of prohibition challenging the circuit court's denial of their motion to dismiss on the issue of forum non conveniens. We found that the circuit court did not abuse its discretion in refusing Petitioner's motion to dismiss, denied Petitioners' writ of prohibition, and referred the case to the MLP. Id . at 17, 784 S.E.2d at 716.

Following this Court's decision in AEP I , Respondent Plaintiffs ("Respondents") filed an amended complaint joining the separate claims of seventy-nine individual plaintiffs, who allege that they or their family members were injured by exposure to CCR generated at the General James M. Gavin Power Plant and disposed of at the associated Gavin Landfill, both of which are located in Gallipolis, Ohio (collectively "Gavin Landfill"). Petitioners allege that the Gavin Landfill was owned or operated by American Electric Power Company, Inc. ("AEP"), American Electric Power Service Corporation, and Ohio Power Company during the period relevant to this action.³ The twelve NWDC Plaintiffs allege that they suffered injury as a result of take-home exposure to CCR—exposure not by visiting the landfill or the plant, but as a result of sharing a residence with independent contractor plaintiffs who brought CCR home on their clothing and shoes⁴

On August 15, 2016, Petitioners filed a motion to dismiss the claims of the NWDC Plaintiffs seeking, among other things, dismissal of the claims pursuant to the Ohio Mixed Dust Statute, Ohio Rev. Code §§ 2307.84 through .902, which provides that premises owners are not liable for alleged off-premises mixed dust exposure of the type that the NWDC Plaintiffs allege.⁵ On August 29, 2016, Respondents filed a response to Petitioner's Motion to Dismiss asserting various arguments regarding why dismissal was improper.⁶

On October 21, 2016, the MLP denied Petitioners' motion to dismiss. The MLP found that because the alleged exposures all occurred entirely within the State of Ohio, the doctrine of lex loci delicti required the application of Ohio law to the claims of the NWDC Plaintiffs.⁷ The MLP further found that the take-home exposure claims fell within the scope of the Ohio Mixed Dust Statute because they allege off-premises exposure to mixed dust as defined by the statute. With regard to the applicability of the Ohio Mixed Dust Statute, the MLP specifically found:

Based upon the findings of fact, the Panel concludes that there are sufficient allegations that the Plaintiffs were exposed to "mixed dust" as defined by Ohio Rev. Code Ann. § 2307.84 ( [M] ). That statute defines a "mixed dust" as a "mixture of dusts composed of silica and one or more other fibrogenic dusts capable of inducing pulmonary fibrosis if inhaled in sufficient quantity." Ohio Rev. Code Ann. § 2307.84 ( [M] ). Plaintiffs' allegations describing coal combustion waste are specific and express allegations that coal combustion waste consists of mixed dust.... These allegations are all that is required to allege a "mixed dust" claim under Ohio's mixed dust statute.

Ohio's mixed dust statute further defines a "mixed dust disease claim" as "any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to inhalation of, exposure to, or contact with mixed dust." Ohio Rev. Code Ann. § 2307.84 ( [N] ). The definition includes claims for "mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to mixed dust." Id . This is exactly what the paragraphs of the Amended Complaint identified above allege. To come within the statute, no more need be alleged. Accordingly, Plaintiffs have asserted mixed dust disease claims falling within the ambit of Ohio Rev. Code Ann. § 2307.84 et seq .

Despite these findings, the MLP found that application of the Ohio Mixed Dust Statute violates the public policy of West Virginia because it bars the claims of the NWDC Plaintiffs, who were not exposed to coal combustion waste while at the Gavin Landfill, but rather, were exposed when the "working direct claim" plaintiffs with whom they resided brought CCR home on their clothes. Relying on our decision in Mills v. Quality Supplier Trucking, Inc ., 203 W.Va. 621, 510 S.E.2d 280 (1998), the MLP found that "the doctrine of lex loci delicti will not be invoked where ‘the application of the substantive law of a foreign state ... contravenes the public policy of this State.’ "

Id. at 624, 510 S.E.2d at 283. In applying West Virginia's public policy exception to the rule of lex loci delicti , the MLP declined to apply Ohio law and concluded it was compelled by West Virginia public policy to allow the NWDC Plaintiffs' claims to go forward even though those claims are prohibited by Ohio law. Citing this Court's decision in Bower v. Westinghouse , 206 W.Va. 133, 522 S.E.2d 424 (1999), which permitted medical monitoring claims, the MLP concluded that "the causes of action [Petitioners] seek to dismiss through the application of foreign law exist under West Virginia law on public policy grounds."⁸

On December 12, 2016, Petitioners filed a petition for a writ of prohibition in this Court seeking to prohibit the MLP from enforcing its order denying its motion to dismiss the NWDC Plaintiffs. Respondents filed a response to the petition on January 10, 2017. By order entered January 25, 2017, this Court issued a rule to show cause and set this matter for oral argument.

II. STANDARD OF REVIEW

Petitioners seek a writ of prohibition. We have held that, "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers[.]" Syl. pt. 2, State ex rel. Peacher v. Sencindiver , 160 W.Va. 314, 233 S.E.2d 425 (1977). As we stated in AEP I :

As an extraordinary remedy, this Court reserves the granting of such relief to "really extraordinary causes." State ex rel. Suriano v. Gaughan , 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted).

....

"[T]his Court will use prohibition ... 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." Syl. pt. 1, in part, 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 Grp., Inc. v. King , 233 W.Va. 564, 759 S.E.2d 795 (2014).

AEP I , 237 W.Va. at 19, 784 S.E.2d at 718.

When deciding whether the writ of prohibition should issue in a given case, we have held as follows:

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.

Syl. pt. 4, in part, State ex rel. Hoover v. Berger , 199 W.Va. 12, 483 S.E.2d 12 (1996).

Keeping these standards in mind, we proceed to consider the parties' arguments.

III. DISC...