State v. Mazzone

• Decision Date: 27 May 2014
• Docket Number: No. 14–0207.,14–0207.
• Citation: 759 S.E.2d 200,233 W.Va. 457
• 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 Cook, et al., Plaintiffs Below, Petitioners v. The Honorable James P. MAZZONE, Lead Presiding Judge, Zoloft Litigation, Mass Litigation Panel; Pfizer, Inc.; Roerig, a Division of Pfizer, Inc.; and Greenstone, LLC f/k/a Greenstone, Ltd, Defendants Below, Respondents.

233 W.Va. 457

759 S.E.2d 200

STATE of West Virginia ex Rel. J.C., A Minor, by and Through his Mother and Next Friend, Michelle Cook, et al., Plaintiffs Below, Petitioners

v.The Honorable James P. MAZZONE, Lead Presiding Judge, Zoloft Litigation, Mass Litigation Panel; Pfizer, Inc.; Roerig, a Division of Pfizer, Inc.; and Greenstone, LLC f/k/a Greenstone, Ltd, Defendants Below, Respondents.

No. 14–0207.

Supreme Court of Appeals of West Virginia.

Submitted: May 6, 2014.

Decided: May 27, 2014.

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. Rule 20(a) of the West Virginia Rules of Civil Procedure provides that “[a]ll persons may join in one action as plaintiffs if they assert any right to relief ... [1] arising out of the same transaction [or] occurrence ... and [2] if any question of law or fact common to all these persons will arise in the action.” Under Rule 20(a), joinder is proper only if both of these requirements are satisfied.

3. Rule 3(a) of the West Virginia Rules of Civil Procedure provides that “[f]or a complaint naming more than one individual plaintiff not related by marriage, a derivative or fiduciary relationship, each plaintiff shall be assigned a separate civil action number and be docketed as a separate civil action and be charged a separate fee by the clerk of a circuit court.” Rule 3(a) is an administrative fee and record keeping provision. The use of multiple case docket numbers is for the purpose of assessing and tracking filing fees, and for tracking documents that may apply to individual plaintiffs. Rule 3(a) does not provide authority for severing a complaint substantively into two or more separate civil cases.

Bert Ketchum, Greene, Ketchum, Farrell, Bailey & Tweel and Ancil G. Ramey, Steptoe & Johnson, Huntington, for Petitioners.

Michael J. Farrell, Erik W. Legg, Megan Farrell Woodyard, Farrell, White & Legg, Huntington and Mark S. Cheffo, Quinn Emanuel Urquhart & Sullivan, New York, NY, for Respondents.

Justice LOUGHRY concurs and reserves the right to file a concurring opinion.

Justice KETCHUM, deeming himself disqualified, did not participate in the decision of this case.

DAVIS, Chief Justice.

In this proceeding, twenty-five plaintiff families (hereinafter collectively “the Petitioners”) ¹ have invoked the original jurisdiction of this Court to obtain a writ of prohibition to prevent enforcement of an order by the Mass Litigation Panel (hereinafter “the Panel”). The Petitioners were referred by the Chief Justice of this Court to the Panel as two civil actions consisting of nineteen plaintiff families in one action, and six plaintiff families in the other. The Panel entered an order that divested the Petitioners of their status as two civil actions and transformed them substantively into twenty-five separate actions. The Petitioners allege that, as a result of the Panel's order, the overwhelming majority of the Petitioners and their claims will be removed to federal court by the Respondents.² The Petitioners now ask this Court to prevent enforcement of the order on the grounds that the Panel did not have authority to substantively alter their status as two civil actions. After a careful review of the briefs, the record submitted, and listening to the argument of the parties, we grant the writ.³

I.FACTUAL AND PROCEDURAL HISTORY

This matter began on July 11, 2012, when nineteen children, by and through their mothers, filed a single complaint alleging products liability and negligence claims against the Respondents in the Circuit Court of Wayne County. ⁴ The complaint alleged that each child was born with a birth defect as a result of his or her mother ingesting a drug named Zoloft (also called Sertraline) that was manufactured by the Respondents.⁵ Consistent with the requirements of Rule 20(a) of the West Virginia Rules of Civil Procedure, the complaint alleged that “joinder of Plaintiffs' claims is proper because Plaintiffs' claims arise out of the same acts and/or omissions of Defendants and/or involve common questions of law and/or fact.” ⁶ Although only one complaint was filed, Rule 3(a) of the West Virginia Rules of Civil Procedure required each plaintiff family to pay a filing fee and be docketed with a separate civil action number.⁷

On August 7, 2012, the Respondents removed the claims of eighteen of the plaintiff families to a federal district court in the Southern District of West Virginia.⁸ The Respondents removed the claims on the grounds that, under Rule 3(a), the claims were actually eighteen separate actions, not one case. While the matter was pending in federal court, the circuit court clerk filed an affidavit in that proceeding explaining that the separate civil action numbers assigned to the plaintiffs were solely for administrative filing fee purposes and that the matter constituted only one case. The plaintiffs filed a motion to remand the case back to circuit court. The federal district judge granted the motion to remand. See J.C. ex rel. Cook v. Pfizer, Inc., Nos. 3:12–CV–04103, et al., 2012 WL 4442518 (S.D.W.Va. Sept. 25, 2012).⁹

After the federal district court remanded the case, the Respondents filed a motion to dismiss the claims asserted by the plaintiff family from New York on the grounds of forum non conveniens.¹⁰ The circuit court denied the motion to dismiss the New York plaintiff family. The Respondents subsequently filed a petition for writ of prohibition with this Court seeking to prohibit enforcement of the circuit court's order denying dismissal of the New York plaintiff family. This Court refused the petition.

The Respondents eventually filed a motion to have the nineteen plaintiff families referred to the Panel. Pursuant to the authority of Rule 26.06(c)(3) of the Mass Litigation Rules,¹¹ the Chief Justice of this Court entered an order on September 24, 2013, denying the motion to refer the plaintiff families to the Panel.¹² Contrary to the Respondents' recitation of the facts, the motion was denied because the plaintiff families' cause of action constituted only one case. The order by the Chief Justice specifically provided “that such Motion to Refer should be denied without prejudice to renew the motion in the event additional state actions are filed.” ¹³

On October 28, 2013, six children, by and through their mothers, filed a single complaint in the Circuit Court of Wayne County, that also alleged products liability and negligence claims against the Respondents.¹⁴ The complaint alleged that each child was born with a birth defect that was caused by Zoloft.¹⁵ Although only one complaint was filed, each plaintiff family was required to pay a filing fee and be docketed with a separate civil action number. On the same date that the complaint was filed, the circuit court entered an order consolidating the complaint of the six plaintiff families with the previously filed complaint of the nineteen plaintiff families.

After the two complaints were consolidated, the Petitioners filed a motion to refer the matter to the Panel on December 2, 2013. On January 14, 2014, the Chief Justice of this Court entered an order transferring the two consolidated cases to the Panel.¹⁶

Prior to the two cases being transferred to the Panel, the Respondents filed a second notice of removal in federal court on December 23, 2013. In this second removal attempt, the Respondents named all nineteen plaintiff families that filed the first complaint.¹⁷ The Respondents argued that the plaintiff family from New York was fraudulently joined. Therefore, complete diversity existed with the remaining eighteen plaintiff families. The federal district court denied the motion to remove on the grounds that “partial removal of a consolidated state civil action is improper.” J.C. ex rel. Cook v. Pfizer, Inc., No. 3:13–33048, 2014 WL 495455, at *5 (S.D.W.Va. Feb. 5, 2014).

After the two cases were referred to the Panel, a status conference was held on March 4, 2014. During the conference, the six Panel members introduced themselves and provided some commentary on the history of mass litigation in the State. The Panel also informed the parties that it interpreted Rule 3(a) to mean that the two complaints filed were actually twenty-five separate civil actions. The Panel later restated its interpretation of Rule 3(a) in an order entered on March 11, 2014. The Petitioners filed the instant petition for a writ of prohibition to prevent enforcement of that order separating the litigation into twenty-five cases.

II.STANDARD OF REVIEW

In this proceeding, the Petitioners seek a writ of prohibition to preclude enforcement of an order by the Panel that interpreted Rule 3(a) as essentially nullifying joinder of unrelated plaintiffs in a single complaint. Insofar as it is an extraordinary remedy, “[p]rohibition lies only to...