Stern v. Chemtall Inc.
| Decision Date | 31 May 2005 |
| Docket Number | No. 31776.,31776. |
| Citation | 617 S.E.2d 876 |
| Parties | William K. STERN, et al., Plaintiffs Below, Appellees Franklin Stump, Danny Gunnoe and Teddy Joe Hoosier, Appellants v. CHEMTALL INCORPORATED, a Georgia Corporation, et al., Defendants Below, Appellees. |
| Court | West Virginia Supreme Court |
R. Dean Hartley, J. Zachary Zatezalo, Michael P. Giertz, Hartley & O'Brien, P.L.L.C., Wheeling, and E. William Harvit, Harvit & Schwartz, L.C., Charleston, and Bradley Oldaker, Bailey, Stultz, Oldaker & Greene, P.L.L.C., Weston, for William K. Stern, et al.
Scott S. Segal, Deborah L. McHenry, The Segal Law Firm, Charleston, and Theodore Goldberg, David B. Rodes, Goldberg, Persky, & White, Pittsburgh, PA, for Franklin Stump, et al.
Landers P. Bonenberger, Jeffrey A. Holmstrand, McDermott & Bonenberger, Wheeling, for Chemtall, Inc.
Robert P. Martin, Todd M. Sponseller, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charleston, for Zinkan Enterprises.
Harry G. Shaffer, Shaffer & Shaffer, Madison, and Mark P. Fitzsimmons, Theresa A. Queen, Steptoe & Johnson, L.L.P., Washington, DC, for Ciba Specialty Chemicals Corp C. James Zeszutek, Denise D. Klug, Thorp, Reed & Armstrong, Pittsburgh, PA, for Ondeo Nalco Co.
Heather Heiskell Jones, Spilman, Thomas & Battle, Charleston, for Cytec Industries, Inc.
This proceeding involves appellants, Franklin Stump, Danny Gunnoe, and Teddy Joe Hoosier, along with others (hereinafter, the "Intervenors") who appeal the Circuit Court of Marshall County's January 15, 2004, denial of their motion to intervene in a class action (hereinafter, the "Stern litigation") for medical monitoring for asymptomatic coal preparation plant workers arising out of the alleged chemical exposure to an industrial water cleaner. Subsequent to the Intervenors' appeal to this Court, the class in which the Intervenors sought intervention was decertified by this Court's decision in State ex rel. Chemtall, Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004). The Intervenors1 are also the plaintiffs in a civil action currently pending in the Circuit Court of Boone County styled Denver and Debra Pettry, et al., v. Peabody Holding Company, et al., Case No. 02-C-58 (hereinafter "the Pettry litigation"), wherein they are seeking medical monitoring relief against some of the same defendants in the Stern litigation.
During the consideration of this appeal, a petition for a writ of mandamus and/or prohibition styled State ex rel. CIBA Speciality Chemical Corporation, et al. v. The Honorable E. Lee Schlaegel, Judge of the Circuit Court of Boone County, et al. and assigned Case No. 042100 was filed in this Court by several of the defendants in the Pettry litigation. The petitioners therein sought to compel the Circuit Court of Boone County to transfer and consolidate the Stern litigation with the Pettry litigation pursuant to Rule 42(b) of the West Virginia Rules of Civil Procedure.2 While we had not issued a Rule to Show Cause in Case No. 042100, we allowed the parties to argue the consolidation issue during oral argument of the Stern appeal because of the interrelatedness of the two matters.
Based upon the parties' briefs and arguments in this proceeding as well as the pertinent authorities, the Circuit Court of Marshall County's January 15, 2004, order is reversed to the extent it is inconsistent with this opinion. Moreover, given our reversal of the Circuit Court of Marshall County's order in the Stern litigation, we find that the issues raised in the petition for an extraordinary writ filed by the Pettry defendants are moot. Accordingly, we decline to issue a Rule to Show Cause in that matter.
On March 5, 2003, appellee, William K. Stern, (hereinafter "Stern"), filed an action in the Circuit Court of Marshall County on behalf of a class of coal preparation plant workers against the suppliers of acrylamide, a chemical to which they were exposed (hereinafter the "Stern litigation"). Some of the suppliers of acrylamide specifically named in the Stern litigation include appellees, Ondeo Nalco Co. (hereinafter, "Ondeo"), CIBA Specialty Chemicals Corp. (hereinafter "CIBA"), Cytec Industries, Inc., Chemtall, Inc. (hereinafter, "Chemtall"), G.E. Betz, Inc., Zinkan Enterprises, and Stockhausen, Inc.
As previously noted, nearly one year earlier, on March 28, 2002, Intervenors Franklin Stump, Danny Gunnoe, along with several other individuals, filed a separate putative class action in the Circuit Court of Boone County on behalf of West Virginia coal treatment workers seeking medical monitoring relief against several of the same defendants as in the Stern case, based on the same exposure to acrylamide with the same resulting risk for the same diseases (hereinafter the "Pettry litigation"). The Pettry litigants, however, alleged numerous additional claims such as personal injury, loss of enjoyment of life, emotional distress, and annoyance and inconvenience, all of which were not asserted by the current litigants in the Stern litigation.
On September 26, 2003, the Circuit Court of Marshall County certified the Stern case as a class action, with a broadly defined class that included the Intervenors and the entire putative class from the Pettry case as well as coal preparation plant workers in West Virginia, Virginia, Illinois, Indiana, Pennsylvania, Ohio, and Tennessee. Following the class certification in Stern, on October 28, 2003, Intervenors Stump and Gunnoe moved to intervene on behalf of themselves and others similarly situated claiming that they had a right to intervene as class members whose interests were not adequately protected by the representative plaintiffs. In addition, Intervenor Hoosier moved to intervene on behalf of water treatment workers with similar medical monitoring claims based upon exposure to the same chemical to prevent the duplication of effort and potential inconsistent results that would necessarily occur following uncoordinated simultaneous prosecution of overlapping class actions.
On January 15, 2004, the Circuit Court of Marshall County denied the Intervenors' motion to intervene. The circuit court stated that under Rule 24(b) of the West Virginia Rules of Civil Procedure, the intervention sought was permissive and should not be allowed because such intervention would unduly delay the adjudication of the rights of the original parties. The circuit court also found with regard to Intervenor Hoosier and the water treatment workers, that they did not have a substantial interest in the Stern litigation.
On June 24, 2004, we granted the Intervenors' petition for appeal to this Court of the Circuit Court of Marshall County's January 15, 2004, denial of their motion to intervene. On December 2, 2004, this Court in State ex rel. Chemtall, Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004), decertified the class in Stern in which the Intervenors seek to participate. Moreover, following a separate action filed by several of the defendants involved in the Pettry litigation, on June 17, 2004, the Circuit Court of Boone County denied the defendants' motion to transfer and consolidate the Stern litigation with the Pettry litigation. On November 5, 2004, the Pettry defendants then filed in this Court the petition for a writ of mandamus and/or prohibition in Case No. 042100 seeking to compel the Circuit Court of Boone County to transfer and consolidate the Stern litigation with the Pettry litigation pursuant to Rule 42(b) of the West Virginia Rules of Civil Procedure.
The subject of the appeal before this Court is the January 15, 2004, denial of the Intervenors' motion to intervene by the Circuit Court of Marshall County. We are also called upon to consider the petition for a writ of mandamus and/or prohibition filed against the Circuit Court of Boone County in Case No. 042100.
As set forth above, the Intervenors are appealing an order of the Circuit Court of Marshall County denying their motion to intervene in the Stern litigation. In Syllabus Point 1 of Coordinating Council for Independent Living, Inc. v. Palmer, 209 W.Va. 274, 546 S.E.2d 454 (2001), we held that:
Syllabus point 2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).
Also, as discussed above, we have considered the issue raised in the petition for a writ of mandamus and/or prohibition filed by the Pettry defendants. Since the petition seeks to have this Court enter an order directing the circuit court to grant various types of relief, we will treat it as a petition for a writ of mandamus seeking to compel the Circuit Court of Boone County to act accordingly. We have stated that a de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus. McComas v. Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996). This Court has also held that:
A writ of mandamus will not issue unless three elements coexist-(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Accord, Syllabus Point 5, Phillip Leon M. v. Greenbrier County Board of Education, 199 W.Va. 400, 484 S.E.2d 909 (1996), modified in part, Cathe...
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