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State ex rel. Municipal Water Works v. Swope

Supreme Court of Appeals of West Virginia

November 5, 2019

STATE OF WEST VIRGINIA ex rel., MUNICIPAL WATER WORKS, Petitioner
v.
THE HONORABLE DEREK C. SWOPE, sitting by special assignment as Judge of the Circuit Court of Wyoming County; SHERMAN TAYLOR, DAVID BAILEY, and JOANNA BAILEY, Respondents

          Submitted: October 2, 2019

          Duane J. Ruggier, II, Esq. Evan S. Olds, Esq. Pullin, Fowler, Flanagan, Brown & Poe, PLLC Charleston, West Virginia Counsel for Petitioner

          Adam D. Taylor, Esq. Taylor & Hinkle, Attorneys at Law, Inc. Stephen P. New, Esq. Amanda J. Taylor, Esq. The Law Office of Stephen P. New Beckley, West Virginia Counsel for Respondents

         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." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

         2. "This Court will review a circuit court's order granting or denying a motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil Procedure [1998] under an abuse of discretion standard." Syl. Pt. 1, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003).

         3. "Where a judge has a pecuniary interest in any case to be tried by him he is disqualified from trying the case, and prohibition is the proper remedy to restrain such trial." Syl. Pt. 1, Keith v. Gerber, 156 W.Va. 787, 197 S.E.2d 310 (1973).

         4. "It is a fundamental rule in the administration of justice that a person cannot be a judge in a cause wherein he is interested, whether he be a party to the suit or not." Syl. Pt. 1, Findley v. Smith, 42 W.Va. 299, 26 S.E. 370 (1896).

         5. "Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a)-numerosity, commonality, typicality, and adequacy of representation-and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party." Syl. Pt. 8, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003).

         6. "The numerosity provision of Rule 23(a)(1) of the West Virginia Rules of Civil Procedure [1998] requires that a class be so numerous that joinder of all of its members is 'impracticable.' It is not necessary to establish that joinder is impossible; rather, the test is impracticability. The test for impracticability of joining all members does not mean 'impossibility' but only difficulty or inconvenience of joining all members." Syl. Pt. 9, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003).

         7. "The 'commonality' requirement of Rule 23(a)(2) of the West Virginia Rules of Civil Procedure [1998] requires that the party seeking class certification show that 'there are questions of law or fact common to the class.' A common nucleus of operative fact or law is usually enough to satisfy the commonality requirement. The threshold of 'commonality' is not high, and requires only that the resolution of common questions affect all or a substantial number of the class members." Syl. Pt. 11, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003).

         8. "The 'typicality' requirement of Rule 23(a)(3) of the West Virginia Rules of Civil Procedure [1998] requires that the 'claims or defenses of the representative parties [be] typical of the claims or defenses of the class.' A representative party's claim or defense is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Rule 23(a)(3) only requires that the class representatives' claims be typical of the other class members' claims, not that the claims be identical. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment." Syl. Pt. 12, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003).

         9. "The 'adequacy of representation' requirement of Rule 23(a)(4) of the West Virginia Rules of Civil Procedure [1998] requires that the party seeking class action status show that the 'representative parties will fairly and adequately represent the interests of the class.' First, the adequacy of representation inquiry tests the qualifications of the attorneys to represent the class. Second, it serves to uncover conflicts of interest between the named parties and the class they seek to represent." Syl. Pt. 13, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003).

         10. "The party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure have been satisfied." Syl. Pt. 6, Jefferson Cty. Bd. of Educ. v. Jefferson Cty. Educ. Ass'n, 183 W.Va. 15, 393 S.E.2d 653 (1990).

         11. "A class action may only be certified if the trial court is satisfied, after a thorough analysis, that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil Procedure have been satisfied. Further, the class certification order should be detailed and specific in showing the rule basis for the certification and the relevant facts supporting the legal conclusions." Syl. Pt. 8, State ex rel. Chemtall Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004).

         12. "'Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.' Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 1195, 185 L.Ed.2d 308 (2013)." Syl. Pt. 7, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54');">242 W.Va. 54, 829 S.E.2d 54 (2019).

         13. "When consideration of questions of merit is essential to a thorough analysis of whether the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure [2017] for class certification are satisfied, failing to undertake such consideration is clear error and an abuse of discretion." Syl. Pt. 8, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54');">242 W.Va. 54, 829 S.E.2d 54 (2019).

          CORRECTED OPINION

          ARMSTEAD, JUSTICE.

         Petitioner Municipal Water Works ("Municipal Water") invokes this Court's original jurisdiction in prohibition to challenge the March 12, 2019, order issued by the Circuit Court of Wyoming County granting respondents' ("plaintiffs")[1] motion for class certification. In its petition to this Court, Municipal Water raises two main arguments: 1) the circuit court judge, the Honorable Warren R. McGraw ("circuit court judge"), should have disqualified himself prior to granting the motion to certify the class because he is a potential class member; and 2) the circuit court's order did not contain a "thorough analysis" of the four class certification prerequisites in Rule 23(a) of the West Virginia Rules of Civil Procedure. After review and for the reasons stated herein, we grant the requested writ of prohibition.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs, individually and on behalf of "a class of similarly situated individuals," filed a complaint on June 19, 2018, in the Circuit Court of Wyoming County against Municipal Water. The complaint alleged that "each putative class member was a customer of [Municipal Water] . . . and, as a result, was exposed to illness causing pollutants in their water supply." This exposure, according to the complaint, put the class members at "an increased risk of illnesses including, but not limited to, kidney and liver disease, failure and/or cancer." Further, the complaint alleges that the polluted water led a "certain subset" of the class members to develop and seek treatment for illnesses including "kidney and liver disease, failure, or cancer."

         Plaintiffs defined two sub-classes in their complaint: 1) customers who suffered and were treated for adverse health effects, and 2) customers who require medical monitoring for adverse health effects. The complaint provides that "[t]his class action seeks damages, punitive damages, costs, establishment of a medical monitoring fund, attorneys' fees, and other relief as a result of [Municipal Water's] conduct described herein."

         On December 7, 2018, plaintiffs filed a motion for class certification, asserting that the proposed class "potentially consists of thousands of [sic] who were exposed to carcinogenic water provided by Defendant [Municipal Water] between 2016-2018, including not only those who suffer from adverse health effects, but also those who appear to be healthy but seek medical monitoring relief. Counsel for Plaintiffs have already been retained by 26 of those affected who are seeking to file suit." Municipal Water filed a response to this motion, noting that limited discovery had occurred, and asserting that only one plaintiff, Sherman Taylor, alleged an actual injury:

Plaintiff Taylor is the only named plaintiff to allege an injury. In the Complaint, the Baileys are simply listed as customers of [Municipal Water]. They do not allege that they have suffered any injury. At this point in the litigation, adequate discovery has not been provided by the plaintiffs and there are no other known named plaintiffs that have allegedly been harmed by alleged polluted water.

         Based on this argument, Municipal Water urged the circuit court to deny the motion for class certification because the plaintiffs failed to satisfy the four prerequisites contained in Rule 23(a) of the West Virginia Rules of Civil Procedure-numerosity, commonality, typicality, and adequacy of representation.[2] After holding a hearing, the circuit court entered an order granting class certification. The "conclusions of law" section of the circuit court's order recites our case law addressing the four prerequisites contained in Rule 23(a). The order then sets forth the following analysis of the four prerequisites:

[Numerosity]: The size and scope of the putative class is sufficiently large to compel the conclusion that numerosity does lie, and that joinder of this many individuals is impracticable. Therefore, Plaintiffs ...

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