State ex rel. J.C. v. Mazzone
| Decision Date | 10 April 2015 |
| Docket Number | No. 14–1189.,14–1189. |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, ex rel. J.C., a minor, by and through his Mother and Next Friend, MICHELLE C., et al. Plaintiffs Below, Petitioners v. The Honorable James P. MAZZONE, lead presiding judge, Zoloft Litigation, Mass Litigation Panel, and Pfizer, Inc., Roerig, Division of Pfizer, Inc., and Greenstone, LLC, Formerly Known as Greenstone, Ltd., Defendants Below, Respondents. |
Benjamin L. Bailey, Esq., John W. Barrett, Esq., Ryan McCune Donovan, Bailey & Glasser LLP, Charleston, WV, Bert Ketchum, Esq., Green Ketchum Farrell, Bailey & Tweel, Huntington, WV, Counsel for the Petitioners.
Michael J. Farrell, Esq., Erik W. Legg, Esq., Megan Farrell Woodyard, Esq., Farrell, White & Legg PLLC, Huntington, WV, Counsel for the Respondents.
The petitioners1 seek a writ of prohibition to prevent the Mass Litigation Panel from enforcing its order entered on October 21, 2014, dismissing them on the basis of forum non conveniens from the underlying personal injury litigation, which involves products liability and negligence claims. Following a careful review of the briefs, the arguments of counsel, the record submitted, and the applicable law, we deny the requested writ.
This litigation commenced on July 11, 2012, when a complaint alleging products liability and negligence claims was filed in the Circuit Court of Wayne County by nineteen unrelated mothers, who brought claims on behalf of their respective minor children. The mothers alleged that their ingestion of the drug sertraline
hydrochloride, also known by its brand name Zoloft,2 during their pregnancies caused their children to suffer birth defects. Out of this group of nineteen, there is one plaintiff family from each of the following states: Connecticut, Maryland, Michigan, New York, Ohio, Oklahoma, Oregon, South Carolina, Texas, Tennessee, and West Virginia—and two plaintiff families from each of the following states: Florida, Louisiana, North Carolina, and Pennsylvania. The respondents, Pfizer, Inc., Roerig, a division of Pfizer, Inc., and Greenstone, LLC, a subsidiary of Pfizer, Inc., which distributes Zoloft (collectively referred to as “the respondents” or “Pfizer”), were named as defendants in the complaint.
On August 7, 2012, the respondents removed eighteen of these nineteen plaintiff families3 to the United States District Court for the Southern District of West Virginia on the basis of diversity jurisdiction.4 The plaintiff families' motion to remand was granted by the federal court.5 The respondents appealed that ruling to the United States Court of Appeals for the Fourth Circuit. On July 12, 2013, the Fourth Circuit refused the appeal on the basis that it did “not have the authority” to review the remand order.6
Thereafter, the respondents filed a motion seeking to refer the litigation to the Mass Litigation Panel (“the Panel”).7 By administrative order entered on September 24, 2013, then-Chief Justice Benjamin denied the motion “without prejudice to renew the motion in the event additional state actions [were] filed.”8 On the heels of this denial, a virtually identical complaint was filed in the Wayne County Circuit Court on October 28, 2013, by six unrelated plaintiff families against Pfizer. These six new plaintiff families are residents of Illinois, Indiana, Iowa, New York, South Carolina, and West Virginia. The circuit court entered an order the same day consolidating the two civil actions.
With two civil actions now pending, the twenty-five plaintiff families filed a motion seeking to refer the litigation to the Panel. While that motion was pending, the respondents filed a second notice of removal in federal court naming all nineteen of the original plaintiff families. Asserting that the New York family omitted from the first removal had been fraudulently joined, the respondents argued there was complete diversity among the remaining eighteen plaintiff families.9 Prior to the entry of the federal court order that would, again, grant the plaintiff families' motion to remand,10 then-Chief Justice Davis transferred the two civil actions to the Panel through an administrative order entered on January 14, 2014.11
Following this referral, the Panel held a status conference on March 4, 2014, in what is now known as In re: Zoloft Litigation (“Zoloft litigation”). During this conference, the Panel advised the parties that under Rule 3(a) of the West Virginia Rules of Civil Procedure, the two complaints were actually twenty-five civil actions. Accordingly, the Panel divided the plaintiff families into twenty-five civil actions in an order entered on March 11, 2014. Those families sought a writ of prohibition in this Court to prevent the enforcement of the Panel's order. On May 27, 2014, this Court issued its opinion in State ex rel. J.C. v. Mazzone, 233 W.Va. 457, 759 S.E.2d 200 (2014) (“Mazzone I ”), wherein it granted the writ of prohibition.
In Mazzone I, this Court addressed the issue of whether Rule 3(a) allowed the Panel to divide the unrelated plaintiff families into twenty-five separate civil actions, or whether the rule was merely an administrative tool for circuit court clerks to charge unrelated plaintiffs separate filing fees. In addressing this issue, we held, as follows:
233 W.Va. at 474, 759 S.E.2d at 217. The Zoloft
litigation was remanded to the Panel.
On June 24, 2014, the Panel entered a Case Management Order12 scheduling various hearings, setting a trial date, and establishing deadlines, including a July 9, 2014, deadline for Rule 12 motions to dismiss. The petitioners did not raise an objection to the Case Management Order, generally, nor to the Rule 12 deadline, specifically.
In conformity with the deadline set forth in the Case Management Order, the respondents filed a motion on July 9, 2014, seeking to dismiss twenty-two non-resident plaintiff families13 on the basis of forum non conveniens under West Virginia Code § 56–1–1a (2012), including the New York plaintiff family who had been the subject of the motion to dismiss in the Wayne County Circuit Court. The respondents argued that Mazzone I clarified the Panel's authority to treat the plaintiff families individually, including for purposes of dispositive motions. Following a hearing on the motion, the Panel unanimously granted, in part, the respondents' motion to dismiss by order entered October 21, 2014.
In its dismissal order, the Panel found that the motion was timely filed as it met the deadline for such motions in the Case Management Order. Upon consideration of the eight factors set forth in the forum non conveniens statute, West Virginia Code § 56–1–1a(a)(1–8),14 as well as the degree of deference to be accorded to the non-resident plaintiffs' choice of forum under this statute, the Panel dismissed, without prejudice, twenty of the twenty-two plaintiff families named in the motion to dismiss, including the New York plaintiff family. With regard to the two plaintiff families from Texas and Michigan, the Panel stated in its order that the respondents' counsel conceded that the claims asserted by the Texas and Michigan families would be precluded under Michigan and Texas law. Accordingly, the Panel denied the motion to dismiss as to these two families.15 Therefore, of the original twenty- five plaintiff families, five remain: two from West Virginia; one from Ohio with ties to West Virginia; one from Texas; and one from Michigan. The petitioners seek a writ of prohibition in this Court to prevent enforcement of the Panel's dismissal order.
In the matter before us, the petitioners seek to prohibit the enforcement of an order dismissing them from the Zoloft
litigation on the basis of forum non conveniens. They challenge the timeliness of the respondents' motion to dismiss. Because that motion was filed within the time frame set by the Panel in its Case Management Order, the petitioners' challenge is essentially directed toward that order. West Virginia Trial Court Rule 26.08(d)16 provides the Panel's lead presiding judge with the “authority” to enter such orders. “Prohibition will lie to prohibit a judge from exceeding his legitimate powers.” Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977).17 In this regard, we rely upon those factors set forth in syllabus point...
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