STATE оf West Virginia, ex rel. J.C., a minor, by and through his Mother and Next Friend, MICHELLE C., et al. v. The Honorable James P. MAZZONE, lead presiding judge, Zoloft Litigation, Mass Litigation Panel, and Pfizer, Inc., Roerig, Division of Pfizer, Inc., and Greenstone, LLC, Formerly Known as Greenstone, Ltd.
No. 14-1189
Supreme Court of Appeals of West Virginia
April 10, 2015
772 S.E.2d 336
or administrative regulations. In addition, the provision must provide a clear mandate to act or not to act in a particular way. Finally, the viability of ethical codes as a source of public policy must depend on a balancing between the public interest served by the professional code and the need of an employer to make legitimate business decisions. We also adopt these limitations as a prudent check on the public policy exception to employment at-will.
Thus, we hold that professional ethical codes may in certain circumstances be a source of public policy. However, we emphasize that any public policy must serve the public interest and be sufficiently concrete to notify employers and еmployees of the behavior it requires.
Id. at 525.
Consistent with Mariani, I would have limited the holding in this case to express that the Rules of Professional Conduct may, in certain circumstances, be a source of judicially conceived public policy when the rule at issue serves the public interest, not just the interest of the profession. Accordingly, I concur with the majority‘s decision.
Michael J. Farrell, Esq., Erik W. Legg, Esq., Megan Farrell Woodyard, Esq., Farrell, White & Legg PLLC, Huntington, WV, Counsel for the Respondents.
LOUGHRY, Justice:
The petitioners1 seek a writ of prohibition to prevent the Mass Litigation Panel from enforcing its order entered on October 21, 2014, dismissing them on the basis of forum non conveniens from the underlying personal injury litigation, which involves products liability and negligence claims. Following a careful review of the briefs, the arguments of counsel, the record submitted, and the applicable law, we deny the requested writ.
I. Facts and Procedural Background
This litigation commenced on July 11, 2012, when a complaint alleging products liability and negligence claims was filed in the Circuit Court of Wayne County by nineteen unrelated mothers, who brought claims on behalf of their respective minor children. The mothers alleged that their ingestion of the drug sertraline hydrochloride, also known by its brand name Zoloft,2 during their pregnancies caused their children to suffer birth defects. Out of this group of nineteen, there is one plaintiff family from each of the following states: Connecticut, Maryland, Michigan, New York, Ohio, Oklahoma, Oregon, South Carolina, Texas, Tennessee, and West Virginia—and two plaintiff families from each of the following states: Florida, Louisiana, North Carolina, and Pennsylvania. The respondents, Pfizer, Inc., Roerig, a division of Pfizer, Inc., and Greenstone, LLC, a subsidiary of Pfizer, Inc., which distributes Zoloft (collectively referred to as “the respondents” or “Pfizer“), were named as defendants in the complaint.
On August 7, 2012, the respondents removed eighteen of these nineteen plaintiff families3 to the United States District Court for the Southern District of West Virginia on the basis of diversity jurisdiction.4 The plaintiff families’ motion to remand was granted by the federal court.5 The respondents appealed that ruling to the United States Court of Appeals for the Fourth Circuit. On July 12, 2013, the Fourth Circuit refused the appeal on the basis that it did “not have the authority” to review the remand order.6
With two civil actions now pending, the twenty-five plaintiff families filed a motion seeking to refer the litigation to the Panel. While that motion was pending, the respondents filed a second notice of removal in federal court naming all nineteen of the original plaintiff families. Asserting that the New York family omitted from the first removal had been fraudulently joined, the respondents argued there was complete diversity among the remaining eighteen plaintiff families.10 Prior to the entry of the federal court order that would, again, grant the plaintiff families’ motion to remand, then-Chief Justice Davis transferred the two civil actions to the Panel through an administrative order entered on January 14, 2014.11
Following this referral, the Panel held a status conference on March 4, 2014, in what is now known as In re: Zoloft Litigation (“Zoloft litigation“). During this conference, the Panel advised the parties that under
In Mazzone I, this Court addressed the issue of whether
provides that “[f]or a complaint naming more than one individual plaintiff not related by marriage, a derivative or fiduciary relationship, each plaintiff shall be assigned a separate civil action number and be docketed as a separate civil action and be charged a separate fee by the clerk of a circuit court.” Rule 3(a) of the West Virginia Rules of Civil Procedure Rule 3(a) is an administrative fee and record keeping provision. The use of multiple case docket numbers is for the purpose of assessing and tracking filing fees, and for tracking documents that may apply to individual plaintiffs.Rule 3(a) does not provide authority for severing a complaint substantively into two or more separate civil cases.
Id., at 459, 759 S.E.2d at 202, syl. pt. 3. We further stated in Mazzone I that while the parties were permissibly joined under
nothing prevents the Panel from using procedural mechanisms to рrocedurally divide the plaintiffs and defendants into any number of relevant groups, so long as no substantive division occurs.... Moreover, to the extent that some plaintiffs may be subject to dispositive motions based upon such issues as statutes of limitation or summary judgment, the Panel also is free to devise a scheme that permits the defendants to raise those issues and have them addressed separately. In addition to these examples, the Panel also may craft solutions to address other procedural issues that may arise.
233 W.Va. at 474, 759 S.E.2d at 217. The Zoloft litigation was remanded to the Panel.
On June 24, 2014, the Panel entered a Case Management Order12 scheduling various hearings, setting a trial date, and establishing deadlines, including a July 9, 2014, deadline for Rule 12 motions to dismiss. The petitioners did not raise an objection to the Case Management Order, generally, nor to the Rule 12 deadline, specifically.
In conformity with the deadline set forth in the Case Management Order, the respondents filed a motion on July 9, 2014, seeking to dismiss twenty-two non-resident plaintiff families13 on the basis of forum non conveniens under
In its dismissal order, the Panel found that the motion was timely filed as it met the deadline for such motions in the Case Management Order. Upon consideration of the eight factors set forth in the forum non conveniens statute,
five
II. Standard for Issuance of a Writ of Prohibition
In the matter before us, the petitioners seek to prohibit the enforcement of an order dismissing them from the Zoloft litigation on the basis of forum non conveniens. They challenge the timeliness of the respondents’ motion to dismiss. Because that motion was filed within the time frame set by the Panel in its Case Management Order, the petitioners’ challenge is essentially directed toward that order.
[i]n determining whether to entertain and issue the writ of prohibition . . . this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct аppeal, 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.
The petitioners also challenge the substance of the Panel‘s forum non conveniens ruling. In this regard, we have held that “[a] circuit court‘s decision to invoke the doctrine of forum non conveniens will not be reversed unless it is found thаt the circuit court abused its discretion.” Syl. Pt. 3, Cannelton Indus., Inc. v. Aetna Cas. & Sur. Co. of Am., 194 W.Va. 186, 460 S.E.2d 1 (1994).18 Carving out an exception to the general proposition that prohibition does not lie to review discretionary rulings,19 we have explained that
[i]n the context of disputes over venue, such as dismissal for forum non conveniens
. . . a writ of prohibition is an appropriate remedy “to resolve the issue of where venue for a civil action lies,” because “the issue of venue [has] the potential of placing a litigant at an unwarranted disadvantage in a pending action and [] relief by appeal would be inadequate.” State ex rel. Huffman v. Stephens, 206 W.Va. 501, 503, 526 S.E.2d 23, 25 (1999); see also State ex rel. Riffle v. Ranson, 195 W.Va. 121, 124, 464 S.E.2d 763, 766 (1995) (“In recent times in every case that has had a substantial legal issue regarding venue, we have recognized the importance of resolving the issue in an original action.“).
State ex rel. Mylan, Inc. v. Zakaib, 227 W.Va. 641, 645, 713 S.E.2d 356, 360 (2011). With these standards in mind, we proceed to determine whether a writ of prohibition should be granted.
III. Discussion
A. Timeliness of Motion to Dismiss
The petitioners challenge the timeliness of the respondents’ motion to dismiss for forum non conveniens. Under
In Mazzone I, this Court expressed its “support [of] the Panel‘s need to have some discretion in processing the numerous issues that necessarily flow from mass litigation cases.” 233 W.Va. at 474, 759 S.E.2d at 217. Recognizing the Panel‘s “authority to implement procedural mechanisms to address the numerous individual and collective unique issues that are inherent in mass litigation[,]” we further stated that “[o]ur Rules of Civil Procedure provide a host of mechanisms for the Panel to use in efficiently processing mass litigation cases.”
Mazzone I, the Panel plainly recognized the unique circumstances presented in this litigation, including the fact that the matter had not progressed very far despite the lapse of time since the filing of the first complaint. Although we also recognize these unique circumstances, we remind the Panel that its discretion and authority is not limitless. While “we fully intend to allow the supervising [Panel] judge to continue to fashion and implement various trial management plans. . . . this Court may choose to exercise its constitutional grant of powers if, and when, issues of constitutional or overarching significance arise that demand immediate relief.” State ex rel. Mobil Corp. v. Gaughan, 211 W.Va. 106, 114, 563 S.E.2d 419, 427 (2002). We do not find such issues under the facts and circumstances of this litigation.
with “mass litigation” cases in non-traditional and often innovative ways, TCR 26.01 was drafted and adopted.21
State ex rel. Mobil Corp. v. Gaughan, 211 W.Va. 106, 111, 563 S.E.2d 419, 424 (2002) (footnote added).
In the case at bar, the Panel clearly evaluated the status of the Zoloft litigation during the scheduling/status conference that was held soon after the remand in Mazzone I. The information garnered during that conference led to the Panel‘s entry of the Case Management Order six days later, which included a deadline for Rule 12 motions that resultantly extended the deadline for motions for forum non conveniens.22
Moreover, even if we were to assume, arguendo, that it was error, there is still no basis to issue the requested writ. In Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981), the trial court effectively extended the time period for a motion for a new trial filed pursuant to
Where a trial court makes an erroneous ruling extending a time period under the Rules of Civil Procedure, and one of the parties relies on the ruling, such party will not be foreclosed from further pursuit of his claim because of this error. This is particularly true where the opposing party acquiesces or fails to object to the erroneous ruling at the time it was made.
Bowman, 168 W.Va. 111, 282 S.E.2d 613, syl. pt. 1;25 see also Roberts v. Consolidation Coal Co., 208 W.Va. 218, 227, 539 S.E.2d 478, 487 (2000) (citing Bowman with approval). During oral argument, the petitioners conceded that they did not object to the inclusion of a Rule 12 deadline in the Case Management Order.26 See
The petitioners assert that the Panel erred in dismissing twenty of the non-resident plaintiff families on the basis of forum non conveniens. They argue that the Panel‘s ruling disregards the “letter and spirit” of Mazzone I, including directions that the Panel not substantively divide the petitioners. The petitioners further argue that the Panel erred in its consideration of the statutory factors governing forum non conveniens under
Conversely, the respondents assert that following the general remand in Mazzone I, the Panel appropriately exercised its discretion in managing the pretrial aspects of the litigation, including its resolution of the respondents’ motions as to certain plaintiff families’ claims based on the facts particular to those families and within the framework set by this Court and under West Virginia law. The respondents also argue that the Panel correctly evaluated each of the eight statutorily mandated factors in making its forum non conveniens ruling.
Our focus in Mazzone I was the Panel‘s interpretation and application of
“to the extent that some plaintiffs may be subject to dispositive motions [,]”27 the Panel was “free to devise a scheme that permits the defendants to raise those issues and have them addressed separately.” Mazzone I, 233 W.Va. at 474, 759 S.E.2d at 217 (emphasis added). Clearly, a motion to dismiss is a dispositive motion.28 And, while we cautioned the Panel against a division of the parties as it had done under its misinterpretation of
Rule 3(a) , “[f]orum non conveniens is not a substantive right of the parties, but a procedural rule of the forum.” State ex rel. North River Ins. Co. v. Chafin, 233 W.Va. 289, 294, 758 S.E.2d 109, 114 (2014) (citing Am. Dredging Co. v. Miller, 510 U.S. 443, 454 n. 4, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994)) (emphasis, added).
In the context of our
Similarly, we believe that the petitioners’ interpretation of Mazzone I as precluding the Panel‘s forum non conveniens ruling would essentially render
We recognize that permissive joinder under
The Panel acquired sufficient information from the parties to recognize the difficulties and complexities that would most assuredly arise through litigating the claims of twenty-two non-resident plaintiff families from sixteen different states whose causes of aсtion arose in those other states. As we have previously held,
[t]he doctrine [of forum non conveniens] accords a preference to the plaintiff‘s choice of forum, but the defendant may overcome this preference by demonstrating that the forum has only a slight nexus to the subject matter of the suit and that another available forum exists which would enable the case to be tried substantially more inexpensively and expeditiously.
Syl. Pt. 3, in part, Norfolk and Western Ry. Co. v. Tsapis, 184 W.Va. 231, 400 S.E.2d 239 (1990).31 Accordingly, after considering all of the above in conjunction with the broad discretion given to the Panel “to continually reassess and evaluate what is required to advance the needs and rights of the parties within the constraints of the judicial system[,]”32 we conclude that under the unique circumstances of this particular litigation, the Panel properly entertained the respondents’ motion to dismiss for forum non conveniens.33
Finally, we turn to the substance of the Panel‘s forum non conveniens ruling.
(a) In any civil action if a court of this state, upon a timely written motion of а party, finds that in the interest of justice and for the convenience of the parties a claim or action would be more properly heard in a forum outside this State, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action, or dismiss any plaintiff: Provided, That the plaintiff‘s choice of a forum is entitled to great deference, but this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in this State. In determin-
ing
whether to grant a motion to stay or dismiss an action, or dismiss any plaintiff under the doctrine of forum non conveniens, the court shall consider: (1) Whether an alternate forum exists in which the claim or action may be tried;
(2) Whether maintenance of the claim or action in the courts of this State would work a substantial injustice to the moving party;
(3) Whether the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff‘s claim;
(4) The state in which the plaintiff(s) reside;
(5) The state in which the cause of action accrued;
(6) Whether the balance of the private interests of the parties and the public interest of the State predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this State. Factors relevant to the private interests of the parties include, but are not limited to, the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; possibility of a view of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Factors relevant to the public interest of the State include, but are not limited to, the administrative difficulties flowing from court congestion; the interest in having localized controversies decided within the State; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty;
(7) Whether not granting the stay or dismissal would result in unreasonable duplication or proliferation of litigation; and
(8) Whether the alternate forum provides a remedy.
In undertaking a forum non conveniens analysis, we have held that circuit courts “must consider the eight factors enumerated in
Through their challenge to the substance of the Panel‘s forum non conveniens ruling, the petitioners make several unavailing arguments. While they generally maintain that the Panel gave no deference to their choice of forum and misapplied these eight statutory factors, they focus on the second statutory factor (whether the maintenance of their claims in West Virginia would work a substantial injustice on the respondents), the sixth factor (balancing the public interest of the state and the private interests of the parties), and the seventh factor (unreasonable duplication and proliferation of litigation). We will, likewise, focus our discussion on these particular statutory factors. Before doing so, however, we will first address the petitioners’ choice of forum.
As non-residents whose causes of action did not arise in West Virginia, the petitioners concede that the deference accorded their choice of fоrum may be diminished. They argue, however, that the Panel gave no deference to their choice of forum and did not consider the effect of the West Virginia
Turning to the second statutory factor, the petitioners assert that the Panel relied upon the respondents’ unsupported factual allegations in reaching its conclusion that the petitioners have no connection to West Virginia and that trying their claims in West Virginia would result in “substantial injustice.” See
Conversely, the respondents assert that the Panel based its factual findings on the record and did not err in acknowledging that the process of obtaining interstate discovery through letters rogatory is more complicated and expensive than obtaining intrastate discovery through ordinary subpoenas. The respondents observe that because the subject plaintiff families are from sixteen states, their respective treаting physicians, prescribing physicians, dispensing pharmacists, and other third-party witnesses are located in those, and potentially other, states. Citing the Panel‘s lack of subpoena power to compel the attendance of these witnesses at depositions or trial, or to compel the production of documents in the possession of these non-party witnesses, the respondents assert that the parties will bear the burden and expense of filing separate individual lawsuits in the home state of each non-party witness to secure subpoena power from the courts in those states. The respondents further note that even where witnesses are willing, the costs associated with obtaining their attendance at deposition and trial “would not be insubstantial and would involve significant travel expense.”
Echoing the respondents’ arguments concerning the second statutory factor, the Panel found that “West Virginia‘s lack of connection to this litigation coupled with the
The sixth statutory factor balances the public interest of the state against the private interest of the parties, including a “consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this State.”
As indicated above, the factors relevant to private interests of the parties include
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses;. the cost of obtaining attendance of willing witnesses; possibility of a view of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
The sixth statutory factor also requires the consideration of the public interest of this state, including “the administrative difficulties flowing from court congestion; the interest in having localized controversies decided within the State; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty[.]”
Turning to the duplication or proliferation of litigation—the seventh statutory factor40—the petitioners assert that the Panel failed to give adequate weight to the fact that they have been litigating their properly joined claims for two years, describing discovery as being “far along.”41 The petitioners contend that forcing them to re-file in their home states will mean that they will start at “ground zero,” resulting in the duplication and proliferation of litigation. Disagreeing with the petitioners’ “ground zero” prediction, the respondents assert that any plaintiff family who re-files in their home state will have access to the significant discovery that Pfizer has already produced. Further, the respondents represent that the initial discovery directed toward Pfizer, which has been completed thus far in similar Zoloft claims pending in the federal multi-district litigation in Pennsylvania, as well as in eight other state courts, is readily transferable to any re-filed proceeding in the respective home states of the petitioners.
Upon its consideration of the seventh statutory factor, the Panel agreed with the respondents, describing the discovery conducted thus far as being extensive with regard to the respondents but only in its initial stages with regard to the plaintiff families. The Panel further agreed that all discovery conducted thus far is “readily transferable to any re-filed proceeding in a subject Plaintiff Family‘s home state.” Observing that none of the petitioners’ claims have been adjudicated on the merits, the Panel found there would be no “unnecessary re-litigation of issues.” Based on the respondents’ representation that the parties and courts involved in similar Zoloft litigation42 have been coordinating their efforts in terms of discovery and other pretrial matters, the Panel concluded that the dismissal of the petitioners “will not significantly expand the scope or geographical breadth of the Zoloft litigation.”43
Basеd upon our consideration of all of the above, we find no error in the Panel‘s decision to dismiss the twenty non-resident plaintiff families on the basis of forum non conveniens under the particular facts, circumstances, and procedural history of this litigation. West Virginia has no real interest in trying non-resident plaintiffs’ claims against non-resident defendants involving causes of action that accrued in states other than West Virginia. Because the petitioners’ claims arose in other states, their cases can “be tried substantially more inexpensively and expeditiously” in those other states where the sources of proof will be more easily accessible. Syl. Pt. 3, in part, Tsapis, 184 W.Va. 231, 400 S.E.2d 239. Moreover, the applicable and governing law in those other states is more readily applied by the courts of those states. Importantly, the judges and jurors in the petitioners’ home states would not be impositioned by having to determine disputes involving individuals who allegedly sustained injuries while resid-
ing
IV. Conclusion
Fоr the reasons stated above, there is no basis to prevent the Panel from enforcing its dismissal order entered on October 21, 2014. Accordingly, the writ of prohibition is denied.
Writ denied.
Justice KETCHUM, deeming himself disqualified, did not participate in the decision in this case.
Senior Status Justice McHUGH sitting by special assignment.
Chief Justice WORKMAN and Justice DAVIS dissent and reserve the right to file dissenting opinions.
DAVIS, J., dissenting; joined by WORKMAN, C.J.:
In this case, the majority opinion refuses to grant the writ of prohibition sought by the plaintiff families to prevent enforcement of the Mass Litigation Panel‘s order granting the defendants’ motion to dismiss the claims of twenty plaintiff families on the ground of forum non conveniens. I dissent because I believe a motion to dismiss based upon forum non conveniens filed two years after litigation was begun simply is not timely as required by
The litigation of the instant matter has taken a long and tortured route that has included two attempts by the defendants to remove the case to federal court and a prior petition to this Court. There also was an earlier motion to dismiss a New York plaintiff family based upon forum non conveniеns filed in 2012 in the circuit court of Wayne County. That motion was denied. A motion to dismiss based upon forum non conviens should typically be filed early in the course of litigation. Indeed, the Legislature has declared that such a motion
is timely if it is filed either concurrently or prior to the filing of either a motion pursuant to Rule twelve of the West Virginia Rules of Civil Procedure or a responsive pleading to the first complaint that gives rise to the grounds for such a motion: Provided, That a court may, for good cause shown, extend the period for the filing of such a motion.
ROBIN JEAN DAVIS
JUSTICE
William FROHNAPFEL and Mary Lou Frohnapfel, Plaintiffs Below, Petitionеrs v. ARCELORMITTAL USA LLC and ArcelorMittal Weirton LLC, Defendants Below, Respondents.
No. 14-0671
Supreme Court of Appeals of West Virginia.
Submitted Feb. 25, 2015. Decided April 10, 2015.
Notes
[a]ll persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.