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
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
Submitted: March 8, 2017
for Writ of Prohibition
W. Turner, Esq. Ancil G. Ramey, Esq. Jessica L. Wiley, Esq.
STEPTOE & JOHNSON PLLC Huntington, West Virginia Counsel
Christopher J. Regan, Esq. J. Zachary Zatezalo, Esq. Laura P.
Pollard, Esq. BORDAS & BORDAS, PLLC Wheeling, West
Virginia Counsel for Respondents.
David Duffield, Esq. Chad S. Lovejoy, Esq. Duffield, Lovejoy,
Stemple & Boggs, PLLC Huntington, West Virginia Counsel
BY THE COURT
"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[.]"
Syllabus point 2, State ex rel. Peacher v.
Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).
"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." Syllabus point 4, in part, State ex
rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12
"In general, this State adheres to the conflicts of law
doctrine of lex loci delicti." Syllabus point
1, Paul v. Nat'l Life, 177 W.Va. 427, 352 S.E.2d
"The mere fact that the substantive law of another
jurisdiction differs from or is less favorable than the law
of the forum state does not, by itself, demonstrate that
application of the foreign law under recognized conflict of
law principles is contrary to the public policy of the forum
state." Syllabus point 3, Nadler v. Liberty Mut.
Fire Ins. Co., 188 W.Va. 329, 424 S.E.2d 256 (1992).
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. Petitioners
contend that the MLP's determination that Ohio's
Mixed Dust Statute 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
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.
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. 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
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. On August 29, 2016, Respondents filed a
response to Petitioner's Motion to Dismiss asserting
various arguments regarding why dismissal was
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. 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.
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
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
STANDARD OF REVIEW
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 ...