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In re Tobacco Litigation

Supreme Court of West Virginia

June 7, 2019

In re Tobacco Litigation
v.
Brown & Williamson Holdings, Inc., Defendant Below, Respondent Jimmie Hieneman, as Executor of the Estate of Mary Ann Hieneman, Plaintiff Below, Petitioner

          In re Tobacco Litigation, No. 00-C-5000, Kanawha County Civil Action No. 98-C-2371

          MEMORANDUM DECISION

         Petitioner Jimmie Hieneman, as Executor of the Estate of Mary Ann Hieneman, by counsel James A. McKowen, appeals the April 6, 2018, order from the Mass. Litigation Panel (sometimes referred to as "panel") denying petitioner's motion to reinstate his case. Respondent Brown & Williamson Holdings Company, Inc., by counsel W. Henry Jernigan, Jr., submitted a response to which petitioner filed a reply.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Mary Ann Hieneman ("the decedent") smoked a variety of manufactured cigarettes and also used Bugler tobacco, marketed by Respondent Brown & Williamson Holdings Co., to roll her own cigarettes.[1] She developed laryngeal cancer and subsequently passed away on February 16, 2007. The decedent's tobacco case was filed in the Circuit Court of Kanawha County in 1998, but it was transferred to the Mass. Litigation Panel for Tobacco where it was consolidated with over 1, 000 other tobacco cases. During Judge Recht's tenure presiding over these cases, he divided them into a number of trial groups: medical monitoring claims; non-Liggett cigarette claims; Liggett cigarette claims; and smokeless tobacco claims. According to petitioner, roll- your-own cigarette claims were never assigned to a trial group or given their own case management or scheduling order. The medical monitoring group was tried, and there was a defense verdict that was affirmed on appeal. The second trial group was limited to non-Liggett brand cigarettes and also resulted in a defense verdict on most issues. That judgment was appealed to this Court and was upheld in In re Tobacco Litigation, Case. No. 13-1204, 2014 WL 5545853 ( W.Va. Nov. 3, 2014)(memorandum decision). The second trial on non-Liggett cigarette claims resolved all of the decedent's manufactured cigarette claims designated in her complaint and 5(b) disclosures, but petitioner contends that her roll-your-own claims were left intact.[2]

         On August 14, 2015, Timothy Barber, an outside attorney working with James F. Humphreys & Associates, L.C., wrote to Judge Recht to further pursue identification of the severed claims, including roll-your-own, snuff, and chewing tobacco claims. In that letter, he "asked all counsel to make appropriate inquiry and be armed with numbers" for those claims. On October 9, 2015, the circuit court conducted a hearing during which Mr. Barber said he had written a number of letters to the various counsel representing plaintiffs in the cases and asked them to identify any plaintiffs who wished to pursue any non-cigarette claims they had filed fifteen years prior. Mr. Barber indicated that he was going to send another communication to counsel saying that the court had ordered them to identify their roll-your-own, snuff, and chewing tobacco cases.

         On June 3, 2016, Judge Recht entered an order requiring that tobacco plaintiffs designate their smokeless tobacco and cigar cases that needed to be tried by June 27, 2016. According to petitioner, the parties disagree as to whether the order applied to the roll-your-own claims; petitioner contends that it did not while respondent contends that it did. Further, petitioner contends that no order was ever entered requiring plaintiffs to designate roll-your-own claims for purposes of creating a trial group. The parties also disagree as to whether a subsequent case management order requiring plaintiffs to file preliminary plaintiff fact sheets for smokeless tobacco cases applied to the roll-your-own claims. On July 7, 2016, Mr. Barber filed a list of twenty-one cases with smokeless tobacco claims on behalf of the Humphreys clients, though that list did not include petitioner's case. As set forth in Mr. Barber's July 7, 2016, letter, this list was limited to smokeless tobacco claims and did not include any roll-your-own claims, which he noted deserved attention, including possibly a scheduling order. On July 11, 2016, the court held a hearing, during which plaintiffs' counsel noted that there may be plaintiffs who wished to pursue roll-your-own claims. Although counsel undertook to identify any such plaintiffs within thirty days of that hearing, none were identified by that date or at any time during the following two years.

         On March 24, 2017, the court entered an agreed case management order concerning claims based on the use of smokeless tobacco products. While that order did not set forth trial dates, it provided for a discovery period extending into 2019. On October 20, 2017, the entire group of remaining tobacco claims was transferred to the Mass. Litigation Panel. That panel held its first hearing on December 14, 2017, during which it expressed a desire to set aggressive timelines and move cases quickly. Beginning in 2018, petitioner's counsel, James A. McKowen, noticed his appearance on behalf of the Humphreys clients. On March 5, 2018, the panel entered an order dismissing all of the tobacco claims, with the exception of certain specified claims; those claims included the following: ninety-two cases with pending Liggett cigarette claims, forty-one cases with smokeless tobacco claims, and thirty cases with ventilated filter claims. On March 10, 2018, petitioner's counsel filed objections to the dismissal order, along with a motion to reinstate various claims, including the roll-your-own claims for petitioner. Petitioner's counsel asserts that it "mistakenly referred" to petitioner's roll-your-own claims as smokeless claims, believing that the category of smokeless tobacco claims included loose leaf tobacco used to roll-your-own cigarettes. Without citing to the record, petitioner asserts that throughout the litigation there had been confusion as to whether roll-your-own claims were included within the category of smokeless tobacco claims. Petitioner's counsel "originally believed this to be true, and argued in his motion to reinstate that [petitioner's] case had not been designated as a 'smokeless' matter because a legal assistant, not realizing that roll-your-own claims were included in the smokeless category, had not added her case to the list."

         On April 6, 2018, the panel entered its order denying petitioner's motion to reinstate his case. In that order, the panel found that counsel of record had informed the court they no longer desired to pursue the forty-one smokeless tobacco claims and dismissed those claims for failure to comply with the court's February 5, 2018, notice of hearing and order.[3] The panel then specifically addressed petitioner's counsel's objections to the order of dismissal with prejudice and motion by certain Humphreys plaintiffs with Liggett and smokeless claims to reinstate certain cases. According to that order, the reasons set forth by plaintiffs below for reinstatement were as follows: 1) they were inadvertently omitted from the designations of pending claims without willfulness or bad will; 2) defendants will suffer no real prejudice; 3) plaintiffs were not responsible for not being listed on the designations; 4) some cases have estate issues, resolution of which would benefit from additional investigation and time to locate and contact family members and determine if they wish to proceed with these claims; and 5) the designations are required disclosures constituting a form of discovery and dismissal is a harsh measure imposed only under extreme circumstances.

         Petitioner's counsel argued that most of the fifteen smokeless tobacco claims they wanted reinstated were either roll-your-own or pipe tobacco, which they contended were never part of the smokeless tobacco group because they were subject to a separate severance order. Defendants argued that the newly identified cases should not be reinstated because it was more than eighteen years after the tobacco litigation had begun and almost two years after the deadline for plaintiffs to identify themselves as having smokeless/non-cigarette claims. Defendants also argued that during a 2016 hearing plaintiffs advised the court they would identify any plaintiffs with roll-your-own claims within thirty days, but they failed to identify such claims until March 10, 2018. The panel denied plaintiffs' motion to reinstate the fifteen cases plaintiffs' counsel had identified on March 10, 2018, as having smokeless tobacco claims. Petitioner appeals from that order.

         As this Court set forth in Covington v. Smith,

[w]hen a circuit court dismisses a case due to inactivity in accordance with W.Va. R. Civ. P. 41(b), a motion requesting the court to reinstate the matter, pursuant to W.Va. R. Civ. P. 41(b) and W.Va. Code § 56-8-12 (1923) (Repl.Vol.1997), rests in the court's sound discretion. "Traditionally, our scope of review, even where reinstatement is timely sought, is limited. It is only where there is a clear showing of an abuse of discretion that reversal is proper." Dimon v. Mansy, 198 W.Va. 40, 46, 479 S.E.2d 339, 345 (1996). Thus,
[a] motion to reinstate a dismissed action under the terms of Code, 56-8-12, is addressed to the sound discretion of the trial court, and, in the absence of a showing of abuse of that discretion, the action of the trial court upon such motion will not be disturbed upon writ of error. Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273');">77 S.E. 273 [ (1913) ].
Syl. pt. 1, Murray v. Roberts, 117 W.Va. 44, 183 S.E. 688 (1936). See also Syl. pt. 4, in part, White Sulphur Springs, Inc. v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942) ("A trial court, upon a motion to reinstate a suit or action, under Code, 56-8-12, is vested with a sound discretion with respect thereto[.]"); Syl. pt. 2, Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273 ("Code 1906, ch. 127, sec. 11, does not peremptorily require every dismissal or non-suit to be set aside simply because the court is asked to do so. The court has a sound discretion in the premises.").
213 W.Va. 309, 315-16, 582 S.E.2d 756, 762-63 (2003) (footnote omitted). As we further stated in ...

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