SER American Electric Power Co. v. Hon. Derek C. Swope, Judge
2017 WL 2626637
W. Va.2017Background
- Seventy-nine plaintiffs sued AEP and related entities alleging injuries from coal combustion residuals (CCR) generated at the Gavin Power Plant and disposed at the Gavin Landfill in Ohio; twelve plaintiffs ("NWDC Plaintiffs") allege "take‑home" exposure (family members brought CCR home on clothing).
- Petitioners moved to dismiss the NWDC Plaintiffs under Ohio’s Mixed Dust Statute (Ohio Rev. Code §§ 2307.84–.902), which bars premises‑owner liability for off‑premises mixed‑dust exposure.
- The Mass Litigation Panel (MLP) denied the motion, applying lex loci delicti to select Ohio law for the claims but concluding Ohio’s Mixed Dust Statute could not be applied because it contravened West Virginia public policy; the MLP relied on West Virginia precedents recognizing medical‑monitoring and related recovery.
- Petitioners sought a writ of prohibition from the West Virginia Supreme Court to bar enforcement of the MLP order as to the twelve NWDC Plaintiffs. The petition argued the MLP clearly erred applying the public‑policy exception and that applying West Virginia law would violate due process.
- The Supreme Court considered whether the MLP improperly invoked the public‑policy exception to lex loci delicti, applied the inhibitory standard for prohibition, and concluded the MLP’s use of the exception was clearly erroneous as to these twelve plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MLP correctly applied West Virginia’s public‑policy exception to refuse application of Ohio’s Mixed Dust Statute to bar the NWDC Plaintiffs’ claims | NWDC Plaintiffs: Ohio statute would bar their claims; West Virginia public policy favors recovery for injuries and medical monitoring, so West Virginia law should apply | Petitioners (AEP): Public‑policy exception is limited; mere difference or less‑favorable foreign law is insufficient; NWDC Plaintiffs lacked significant contacts with WV, so Ohio law should apply | Court held MLP erred: public‑policy exception not warranted here because NWDC Plaintiffs had no substantial WV contacts and application would permit forum‑shopping; under Ohio’s statute dismissal should be granted as to those twelve plaintiffs |
| Whether extraordinary relief (writ of prohibition) was appropriate to correct the MLP’s order | Plaintiffs implicitly argued denial should stand until appeal | Petitioners argued prohibition is proper because the MLP exceeded legitimate powers and the error is clear and prejudicial | Court granted the writ, finding standards for prohibition satisfied (clear legal error, prejudice not correctable on appeal) |
Key Cases Cited
- Paul v. Nat’l Life, 177 W.Va. 427, 352 S.E.2d 550 (W. Va. 1986) (lex loci delicti is the general rule; public‑policy exception applies when foreign law contravenes strong WV policy)
- Nadler v. Liberty Mut. Fire Ins. Co., 188 W.Va. 329, 424 S.E.2d 256 (W. Va. 1992) (mere difference or less‑favorable foreign law does not alone establish a public‑policy bar to applying that law)
- Mills v. Quality Supplier Trucking, Inc., 203 W.Va. 621, 510 S.E.2d 280 (W. Va. 1998) (applied public‑policy exception to reject Maryland’s contributory‑negligence bar where WV policy favored recovery)
- Bower v. Westinghouse, 206 W.Va. 133, 522 S.E.2d 424 (W. Va. 1999) (recognized medical‑monitoring claims grounded in WV public policy)
- State ex rel. Am. Elec. Power Co. v. Nibert, 237 W.Va. 14, 784 S.E.2d 713 (W. Va. 2016) (prior proceedings addressing forum non conveniens and retention of the broader litigation in WV courts)