SER J.C., a minor v. Hon. James P. Mazzone, Judge ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term FILED
April 10, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 14-1189 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA, EX REL. J.C., a minor,
BY AND THROUGH HIS MOTHER AND NEXT FRIEND, MICHELLE C., ET AL.
Plaintiffs Below, Petitioners
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,
Defendants Below, Respondents
PETITION FOR WRIT OF PROHIBITION
WRIT DENIED
Submitted: March 11, 2015
Filed: April 10, 2015
Benjamin L. Bailey, Esq. Michael J. Farrell, Esq.
John W. Barrett, Esq. Erik W. Legg, Esq.
Ryan McCune Donovan Megan Farrell Woodyard, Esq.
Bailey & Glasser LLP Farrell, White & Legg PLLC
Charleston, West Virginia Huntintgton, West Virginia
Counsel for the Respondents
Bert Ketchum, Esq.
Green Ketchum Farrell
Bailey & Tweel
Huntington, West Virginia
Counsel for the Petitioners
JUSTICE LOUGHRY delivered the opinion of the Court.
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.
SYLLABUS BY THE COURT
1. “Prohibition will lie to prohibit a judge from exceeding his legitimate
powers.” Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977).
2. “In 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 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,
in part, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
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,
1
The petitioners are twenty of the twenty-five unrelated, non-resident plaintiff families
named in two complaints, as discussed more fully, infra. Because this litigation involves
plaintiffs who are minor children, we use initials in the style of this case. See W.Va.R.App.P.
40(e)(1) (restricting use of personal identifiers in matters involving juveniles).
2
Zoloft is used in the treatment of several disorders, including Major Depressive
Disorder, Obsessive-Compulsive Disorder, Panic Disorder, Posttraumatic Stress Disorder,
and Social Anxiety Disorder.
1
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 divison 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
3
The plaintiff family from New York was not removed to federal court as it is not
diverse from respondent Pfizer, which is headquartered in New York. On August 12, 2012,
Pfizer filed a motion in the circuit court seeking to dismiss the claims asserted by this New
York plaintiff family on the basis of forum non conveniens. The circuit court denied the
motion. Pfizer sought relief from this ruling through a petition for a writ of prohibition filed
in this Court. We summarily refused the petition by order without oral argument and without
any discussion on the merits.
4
See 28 U.S.C. § 1332(a) (2012) (“The district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between– (1) citizens of different States[.]”).
5
J.C. ex rel. Cook v. Pfizer, Inc., Nos. 3:12-CV-04103, et al., 2012 WL 4442518(S.D.W.Va. Sept. 25, 2012).
2
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
Thereafter, the respondents filed a motion seeking to refer the litigation to the
Mass Litigation Panel (“the Panel”).7 By administrative order entered on September 24,
2013, then-Chief Justice Benjamin denied the motion “without prejudice to renew the motion
in the event additional state actions [were] filed.”8 On the heels of this denial, a virtually
identical complaint was filed in the Wayne County Circuit Court on October 28, 2013, by six
unrelated plaintiff families against Pfizer. These six new plaintiff families are residents of
Illinois, Indiana, Iowa, New York, South Carolina, and West Virginia. The circuit court
entered an order the same day consolidating the two civil actions.
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
6
E.D. ex rel. Darcy v. Pfizer, Inc., 722 F.3d 574, 583 (4th Cir. 2013).
7
This Court established the Panel to, inter alia, “develop and implement case
management and trial methodologies to fairly and expeditiously resolve Mass Litigation
referred to the Panel by the Chief Justice[.]” T.C.R. 26.05(a). Motions to refer litigation to
the Panel are provided for in West Virginia Trial Court Rule 26.06.
8
Trial Court Rule 26.04(a) defines “mass litigation” as two or more civil actions
pending in one or more circuit courts.
3
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.9 Prior to the entry of the federal court order that would,
again, grant the plaintiff families’ motion to remand,10 then-Chief Justice Davis transferred
the two civil actions to the Panel through an administrative order entered on January 14,
2014.11
9
Pfizer did not seek to remove the six new plaintiff families named in the second
complaint.
10
J.C. ex rel. Cook v. Pfizer, Inc., No. 3:13-33048, 2014 WL 495455 (S.D.W.Va. Feb.
5, 2014) (finding partial removal of consolidated case improper and observing that even if
all twenty-five plaintiff families had been removed, the existence of two plaintiff families
from New York destroyed diversity).
11
On July 7, 2014, after the referral to the Panel, a new complaint was filed by the
same counsel in the Circuit Court of Wayne County naming thirteen unrelated plaintiff
families, two of whom are West Virginia residents. The parties represent that the allegations
in the complaint were substantively identical to the two prior complaints filed against Pfizer.
The respondents filed a motion pursuant to West Virginia Trial Court Rule 26.09 seeking to
join these new plaintiff families with the existing Zoloft litigation. The plaintiff families
concurred in the motion. Before the motion to refer was ruled upon, the respondents filed
a motion in the circuit court seeking to dismiss the eleven non-resident plaintiff families on
the basis of forum non conveniens. Two of these families voluntarily dismissed their claims,
leaving nine non-resident plaintiff families subject to the motion to dismiss. On August 21,
2014, through prior authorization given to the Panel by the Chief Justice in an amended
administrative order entered March 5, 2014, the Panel granted the respondents’ motion to
refer. A hearing was held on the respondents’ motion to dismiss for forum non conveniens.
By order entered October 29, 2014, the Panel granted the motion to dismiss. Thereafter, one
of the two West Virginia families voluntarily dismissed their claims, leaving one West
Virginia family in the third complaint. These nine non-resident plaintiff families have not
challenged their dismissal.
4
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 Rule 3(a) of the West Virginia Rules of
Civil Procedure, the two complaints were actually twenty-five civil actions. Accordingly,
the Panel divided the plaintiff families into twenty-five civil actions in an order entered on
March 11, 2014. Those families sought a writ of prohibition in this Court to prevent the
enforcement of the Panel’s order. On May 27, 2014, this Court issued its opinion in State
ex rel. J.C. v. Mazzone, 233 W.Va. 457, 759 S.E.2d 200 (2014) (“Mazzone I”), wherein it
granted the writ of prohibition.
In Mazzone I, this Court addressed the issue of whether Rule 3(a) allowed the
Panel to divide the unrelated plaintiff families into twenty-five separate civil actions, or
whether the rule was merely an administrative tool for circuit court clerks to charge unrelated
plaintiffs separate filing fees. In addressing this issue, we held, as follows:
Rule 3(a) of the West Virginia Rules of Civil Procedure
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) 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.
5
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 Rule 20 of the West Virginia Rules of Civil Procedure,
nothing prevents the Panel from using procedural mechanisms
to procedurally 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
12
Case management orders are authorized under West Virginia Trial Court Rule
26.08(d), which is discussed, infra.
6
plaintiff families13 on the basis of forum non conveniens under West Virginia Code § 56-1-1a
(2012), including the New York plaintiff family who had been the subject of the motion to
dismiss in the Wayne County Circuit Court. The respondents argued that Mazzone I clarified
the Panel’s authority to treat the plaintiff families individually, including for purposes of
dispositive motions. Following a hearing on the motion, the Panel unanimously granted, in
part, the respondents’ motion to dismiss by order entered October 21, 2014.
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, West Virginia Code § 56-1­
1a(a)(1-8),14 as well as the degree of deference to be accorded to the non-resident plaintiffs’
choice of forum under this statute, the Panel dismissed, without prejudice, twenty of the
twenty-two plaintiff families named in the motion to dismiss, including the New York
plaintiff family. With regard to the two plaintiff families from Texas and Michigan, the
Panel stated in its order that the respondents’ counsel conceded that the claims asserted by
the Texas and Michigan families would be precluded under Michigan and Texas law.
13
The respondents did not name the two West Virginia families or the Ohio family
with ties to West Virginia in their motion to dismiss.
14
These statutory factors are quoted, in full, infra.
7
Accordingly, the Panel denied the motion to dismiss as to these two families.15 Therefore,
of the original twenty-five plaintiff families, five remain: two from West Virginia; one from
Ohio with ties to West Virginia; one from Texas; and one from Michigan. The petitioners
seek a writ of prohibition in this Court to prevent enforcement of the Panel’s dismissal order.
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. West Virginia Trial Court Rule 26.08(d)16
provides the Panel’s lead presiding judge with the “authority” to enter such orders.
15
In denying the motion to dismiss as to the Texas and Michigan families, the Panel
stated that
the presumption that alternate forums exist may be defeated “if
the remedy provided by the alternative forum is so clearly
inadequate or unsatisfactory that it is no remedy at all. In such
cases, the alternate forum ceases to ‘exist’ for purposes of forum
non conveniens, and dismissal in favor of that forum would
constitute error.” Syl. Pt. 9 [in part], Mace [v. Mylan Pharm.,
Inc.], 227 W.Va. 666, 668, 714 S.E.2d 223, 225 (2011).
16
West Virginia Trial Court Rule 26.08(d) provides that “[t]he Presiding Judge is
authorized to adopt a case management order . . . and, after considering the due process rights
of the parties, to adopt any procedures deemed appropriate to fairly and efficiently manage
and resolve Mass Litigation.”
8
“Prohibition will lie to prohibit a judge from exceeding his legitimate powers.” Syl. Pt. 2,
State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977).17 In this regard,
we rely upon those factors set forth in syllabus point four of State ex rel. Hoover v. Berger,
199 W.Va. 12, 483 S.E.2d 12 (1996):
[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 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.
17
We observe a notable difference between West Virginia Trial Court 26.08(d) and
its substantive equivalent, Rule 16(b) of the West Virginia Rules of Civil Procedure. Rule
16(b) states, in part, that “the judge shall . . . enter a scheduling order . . . .” Id. (emphasis
added). The use of the word “shall” in this rule expresses a mandatory intent. See Syl. Pt.
2, in part, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969) (“The word ‘shall,’
in the absence of language in the statute showing a contrary intent . . . should be afforded a
mandatory connotation.”). The word “shall” does not appear in Trial Court Rule 26.08(d),
which merely authorizes the entry of case management orders; therefore, such case
management orders are arguably permissive or discretionary, rather than mandatory. While
prohibition does not lie to prevent an abuse of discretion by a trial court, upon reviewing the
timeliness issue and whether the Panel exceed its legitimate powers in setting a Rule 12
motion deadline, we find no error, as discussed infra. See Syl. Pt. 2, in part, State ex rel.
Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will
not issue to prevent a simple abuse of discretion by a trial court.”).
9
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 that 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.
18
In Cannelton Industries, this Court discussed the common law doctrine of forum non
conveniens. In 2007, the Legislature codified this doctrine in West Virginia Code § 56-1-1a.
19
See supra note 17.
10
III. Discussion
A. Timeliness of Motion to Dismiss
The petitioners challenge the timeliness of the respondents’ motion to dismiss
for forum non conveniens. Under West Virginia Code §56-1-1a, a forum non conveniens
motion is timely if it is filed “either concurrently or prior to the filing of . . . a motion
pursuant to Rule twelve of the West Virginia Rules of Civil Procedure . . . .” The Panel
found that the respondents’ motion was timely filed because it met the deadline for Rule 12
motions set forth in its Case Management Order. See Franklin D. Cleckley, Robin Jean
Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil
Procedure, §12(b)(3)[4], at p. 373-75 (4th ed. 2012) (addressing forum non conveniens in
context of motions to dismiss under Rule 12(b)(3)).20
20
Typically, we would not expect to see a Rule 12 motion deadline in litigation that
had been pending, in part, for nearly two years at the time the Case Management Order was
entered. But see In re: Digitek® Litigation, Apr. 2, 2010 Order, Mass Litigation Panel
(dismissing claims of two plaintiffs from mass litigation on basis of forum non conveniens
where complaints were filed approximately fifteen and eighteen months earlier). However,
as can readily be seen from the factual recitation set forth above, prior to the attempted
referral to the Panel in the fall of 2013, this litigation primarily involved two removals to
federal court, including an appeal to the Fourth Circuit. Thereafter, the litigation was
referred to the Panel after which the litigation involved the petitioners’ pursuit of a writ of
prohibition in Mazzone I. Consequently, once this litigation was remanded to the Panel in
May of 2014, following 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
(continued...)
11
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.” Id. In fact, we informed the Panel that “to the extent that some plaintiffs
may be subject to dispositive motions[,]” it was “free to devise a scheme that permits the
defendants to raise those issues and have them addressed separately[,]” which the Panel did
in its Case Management Order. Id. Indeed, long before Mazzone I, this Court recognized
that the
management of [mass tort] cases cannot be accomplished
without granting the trial courts assigned to these matters
significant flexibility and leeway with regard to their handling
of these cases. A critical component of that required flexibility
is the opportunity for the trial court to continually reassess and
evaluate what is required to advance the needs and rights of the
parties within the constraints of the judicial system. Out of this
need to deal with “mass litigation” cases in non-traditional and
often innovative ways, TCR 26.01 was drafted and adopted.21
20
(...continued)
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.
21
West Virginia Trial Court Rule 26.01 established the Mass Litigation Panel, and
Trial Court Rules 26.01 through Rule 26.12 pertain to mass litigation.
12
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 W.Va.R.Civ.P.
12. Indeed, the Panel has great discretion under our mass litigation rules23 to implement case
management plans and orders–even where they may conflict with another rule or statute.24
Accordingly, we find that the Panel had the authority to enter a case management order that
established a deadline for Rule 12 motions. As such, the respondents’ motion, filed in
conformance with the Case Management Order, was timely.
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
22
W.Va. Code § 56-1-1a(b).
23
See supra notes 16, 20, and 21.
24
West Virginia Trial Court Rule 26.12 provides, in part, that “[i]f these Rules conflict
with other rules or statutes, these rules shall apply[.]”
13
pursuant to Rule 59 of the West Virginia Rules of Civil Procedure. The defendants
challenged that ruling on the basis that another West Virginia Rule of Civil Procedure–Rule
6–specifically precludes a trial court from extending the time for taking action under Rule
59. In addressing this issue, this Court held:
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
25
In Bowman, the Court relied upon Thompson v. Immigration and Naturalization
Service, 375 U.S. 384 (1964), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371
U.S. 215 (1962). Both Thompson and Harris involved a challenge to the timeliness of an
appeal where the trial court extended the time period under the rules of civil procedure for
filing an appeal. In a recent five to four majority opinion, the United States Supreme Court
overruled both Thompson and Harris “to the extent they purport to authorize an exception
to a jurisdictional rule.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Clarifying the
difference between time limit rules that are “jurisdictional,” versus those that are “claims­
processing,” the Court noted its “longstanding treatment of statutory time limits for taking
an appeal as jurisdictional[.]” Id. at 210. Because forum non conveniens presupposes a
court’s jurisdiction, rather than conferring it, our holding in Bowman remains good law for
our current purposes. See Mylan, 227 W.Va. at 643 n.1, 713 S.E.2d at 358 n.1 (“[I]t is
generally recognized that a motion to dismiss on the basis of forum non conveniens
presupposes that the court in which the action is filed . . . has jurisdiction . . . in which to hear
the claims.”).
14
Rule 12 deadline in the Case Management Order.26 See W.Va.R.Civ.P. 12. In the absence
of any objection, the respondents relied upon the Rule 12 deadline in the Case Management
Order and filed their motion to dismiss pursuant to the order. Accordingly, even if the Panel
erred in setting a Rule 12 deadline in its Case Management Order, under Bowman, the
respondents’ motion to dismiss would still be timely filed. 168 W.Va. 111, 282 S.E.2d 613,
syl. pt.1.
B. Dismissal for forum non conveniens
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 West Virginia
Code § 56-1-1a by failing to give any deference to their choice of forum and by crediting
respondents’ unsupported factual allegations in its evaluation of certain of these factors, all
to the petitioners’ prejudice.
26
We observe that the petitioners had two weeks during which they could have
objected to the Panel’s Case Management Order.
15
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 Rule
3(a) of the West Virginia Rules of Civil Procedure for the purpose of converting the two civil
actions referred to the Panel into twenty-five separate civil actions. Our discussion of
permissive joinder in Mazzone I was directly related to our analysis of the intent and purpose
of Rule 3(a), an administrative fee-collecting rule. We also recognized that “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
27
The Court gave as examples motions based on statutes of limitation or summary
judgment. Mazzone I, 233 W.Va. at 474, 759 S.E.2d at 217.
28
See State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 775,
461 S.E.2d 516, 521 (1995) (referring to defendants’ motion to dismiss as “dispositive
(continued...)
16
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) (emphasis added).
In the context of our Rule 3(a) analysis, we also found that “[t]he claims
alleged in the complaints are logically related and arise from the same transactions or
occurrences, i.e., the production, distribution, and promotion of Zoloft[,]” thereby satisfying
permissive joinder under Rule 20(a) of the West Virginia Rules of Civil Procedure.29
Mazzone I, 233 W.Va. at 464, 759 S.E.2d at 207. Permissive joinder of parties under Rule
20 “is to be liberally construed.” Anderson v. McDonald, 170 W.Va. 56, 60, 289 S.E.2d 729,
734 (1982). Thus, we concluded in Mazzone I that if we had “sought to achieve the Panel’s
28
(...continued)
pretrial motion[]”); Zaleski v. West Virginia Mut. Ins. Co., 224 W.Va. 544, 551, 687 S.E.2d
123, 130 (2009) (“[A]t no time did this Court make a dispositive ruling ‘granting’ the
Mutual’s motion to dismiss.”) (emphasis added); Randall v. Fairmont City Police Dep’t, 186
W.Va. 336, 339, 412 S.E.2d 737, 740 (1991) (“The dispositive procedural issue, however,
is the propriety of the dismissal of the action . . . .”) (emphasis added).
29
West Virginia Rule of Civil Procedure 20(a) provides, in part, that
[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.
17
interpretation of Rule 3(a), we necessarily would have had to abolish Rule 20(a).” 233
W.Va. at 469, 759 S.E.2d at 212.
Similarly, we believe that the petitioners’ interpretation of Mazzone I as
precluding the Panel’s forum non conveniens ruling would essentially render West Virginia
Code § 56-1-1a a nullity in pharmaceutically-related litigation. In other words, any drug will
necessarily be “produc[ed], distribut[ed], and promot[ed]” by the drug’s manufacturer. 233
W.Va. at 464, 759 S.E.2d at 207. Persons alleging similar complaints arising from the
ingestion of a drug will undoubtedly have common questions of fact concerning “the design
of [the drug], the [manufacturer’s] knowledge of the drug’s safety, and [its] representations
about its safety.” Id. at 465, 759 S.E.2d at 208. Consequently, the ability to meet the liberal
standard for Rule 20(a) does not correspondingly guarantee the existence of a convenient
forum, as is apparent under the facts and circumstances of the Zoloft litigation.30
30
Other than citing the spirit and letter of Mazzone I, the petitioners have not provided
any legal authority demonstrating the erroneous application of forum non conveniens
principles in this matter beyond their challenge to the timeliness of Pfizer’s motion to dismiss
and to the Panel’s analysis of the statutory factors under West Virginia Code § 56-1-1a. We
note that the nine non-resident plaintiff families named in the third Zoloft complaint have not
challenged their dismissal on the basis of forum non conveniens, which Pfizer’s counsel
pointed out during oral argument. In the absence of any responsive argument or explanation
to the point raised, we are left with an implicit concession that permissively joined plaintiffs
can be dismissed on that basis.
18
We recognize that permissive joinder under Rule 20(a) is designed to expedite
litigation and relieve the burden on the courts and the litigants by allowing a single suit to
determine the rights and liabilities of the parties. This purpose is necessarily attenuated when
considered in the context of multiple parties from multiple states who have no connection to
West Virginia and whose causes of action did not arise in West Virginia. While there can
be factors that favor joinder, we cannot ignore the countervailing concerns associated with
litigating claims in a convenient forum.
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
action 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
31
See supra note 18.
19
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.
West Virginia Code § 56-1-1a provides, in relevant part, as follows:
(a) In any civil action if a court of this state, upon a timely
written motion of a 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 determining 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;
32
Mobil Corp., 211 W.Va. at 111, 563 S.E.2d at 424.
33
We do not undertake in this opinion to announce any new point of law. Permissive
joinder and forum non conveniens will necessarily be assessed under the peculiar facts and
circumstances of each case.
20
(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.
Id. (emphasis added).
In undertaking a forum non conveniens analysis, we have held that circuit
courts “must consider the eight factors enumerated in West Virginia Code § 56-1-1a . . . as
21
a means of determining whether, in the interest of justice and for the convenience of the
parties, a claim or action should be . . . dismissed on the basis of forum non conveniens.”
Syl. Pt. 5, in part, Mylan, 227 W.Va. at 642-43 357-58, 713 S.E.2d at 357-58. We further
held in Mylan that “[i]n all decisions on motions made pursuant to West Virginia Code § 56­
1-1a . . . courts must state findings of fact and conclusions of law as to each of the eight
factors listed for consideration under subsection (a) of that statute.” Id., 227 W.Va. at 643,
713 S.E.2d at 358, syl. pt. 6, in part. We have also recognized that “[t]he weight assigned
to each factor varies because each case turns on its own unique facts.” North River, 233
W.Va. at 295, 758 S.E.2d at 115. We find that the Panel has entered a thorough order
addressing these statutory factors as required by Mylan.
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.
22
As non-residents whose causes of action did not arise in West Virginia, the
petitioners concede that the deference accorded their choice of forum 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 plaintiffs’ choice of forum, which is entitled to great
deference.34 In disagreement, the respondents assert that the Panel correctly observed that
the deference afforded to a plaintiff’s choice of forum “may be diminished when the plaintiff
is a nonresident and the cause of action did not arise in this State.” W.Va. Code § 56-1-1a(a).
The Panel found it indisputable that all of the petitioners reside–and their causes of action
arose–in states other than West Virginia. Consequently, the Panel concluded that their
“choice of forum is entitled to less deference.”35 We find no error in the Panel’s conclusions
in this regard.
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
34
Although the petitioners argue their choice of forum is entitled to deference because
their claims are joined to the claims of the West Virginia families, the Panel noted that Rule
20(a) provides that “judgment may be given for one or more of the plaintiffs[.]”
35
Even if the Panel had not given any deference to the petitioners’ choice of forum,
it might not necessarily have been error. See Mylan, 227 W.Va. at 648, 713 S.E.2d at 363(“Nothing in the statute requires a court to diminish, or abolish altogether, the deference it
normally affords a plaintiff’s choice of forum. Rather, it permits courts to do so, when the
precedent factors have been met.”).
23
Virginia would result in “substantial injustice.” See W.Va. Code § 56-1-1a(a)(2). They posit
that their dismissal at this point in the litigation will result in extreme prejudice to them, and
that the connection between their claims and West Virginia is the fact that they have been
litigating their claims in West Virginia; that more plaintiffs are from West Virginia than from
any other state;36 and that the respondents conduct a substantial amount of business in West
Virginia through marketing and selling Zoloft. As for the Panel’s conclusion that interstate
discovery would be “complicated and expensive,” the petitioners contend this conclusion is
inaccurate and is based on the respondents’ “flimsy allegations.”37
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
36
This statement is misleading to the extent it implies that the majority of the plaintiffs
are West Virginia residents when, in fact, the overwhelming majority of plaintiffs are from
states other than West Virginia. Of the twenty-five plaintiff families in the Zoloft litigation
at the time of the remand in Mazzone I, two were residents of West Virginia, a third had ties
to West Virginia, and the remaining twenty-two resided in sixteen different states.
37
The petitioners also cite the reasoning of the Wayne County Circuit Court in its order
denying Pfizer’s motion to dismiss the New York plaintiff family on the basis of forum non
conveniens, including its conclusion that treating physicians rarely appear in mass tort cases
and that the consolidation of the plaintiff families avoids unnecessary costs and delays. The
circuit court’s ruling is not binding upon this Court. Further, it does not warrant a finding
that the Panel either misinterpreted West Virginia Code § 56-1-1a or abused its discretion by
its application of that statute, particularly since this litigation was in a different posture at the
time of the Panel’s forum non conveniens ruling.
24
plaintiff families are from sixteen states, their respective treating 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
difficulty of compelling or voluntarily securing witnesses for deposition and trial would work
a substantial injustice to both Plaintiffs and Defendants[.]” As the Panel correctly observed,
all of the evidence, witnesses, and locations relevant to the petitioners’ claims will be located
in their respective home states. Confirming the respondents’ arguments, the Panel cited its
lack of subpoena power to compel the attendance of non-party witnesses at deposition or trial
or to compel the production of documents in the possession of non-parties, a fact the
25
petitioners do not dispute.38 The Panel further found that the considerable distance between
West Virginia and the petitioners’ home states would render interstate discovery and
procuring the voluntary attendance of non-party witnesses for depositions and trial more
complicated and expensive. These factors–coupled with West Virginia’s lack of connection
to the non-resident plaintiffs’ claims–were found by the Panel to “work a substantial injustice
to both Plaintiffs and Defendants.”
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.” W.Va. Code § 56-1­
1a(a)(6). The petitioners argue that litigating the claims of the remaining plaintiff families
in West Virginia, including two West Virginia families, favors keeping all plaintiff families
joined as it would impose no additional burden on West Virginia judges or juries. In
complete disagreement, the respondents assert that the petitioners’ argument “rests on the
unsupportable premise that trying the claims of twenty-five Plaintiff Families will take no
more time and no more attention from citizens called for jury duty or West Virginia judges,
than trying the claims of five Plaintiff Families.”
38
By way of illustration, the supplemental appendix record contains a preliminary
witness list for a few of the plaintiff families. There are fifteen healthcare providers located
in the states of North Carolina and South Carolina listed for one plaintiff family, and fourteen
healthcare providers located in the states of California and Oklahoma listed for another
plaintiff family.
26
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.
W.Va. Code § 56-1-1a(a)(6). In weighing these particular considerations, the Panel made
findings similar to those it made concerning the second factor, after which it concluded that
each of the “private interests weighs in favor of dismissal” and “favors litigation in the
subject Plaintiff Families’ home states where a significant amount of such proof is located.”
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[.]” W.Va. Code § 56­
1-1a(a)(6). The Panel cited the administrative difficulties flowing from court congestion
associated with trying the claims of twenty-two non-resident plaintiff families in West
Virginia against non-resident defendants. Another public interest concern cited by the Panel
was the unreasonableness of imposing jury duty on West Virginia citizens who would be
required to devote significant time to complicated issues involving each plaintiff mother’s
27
alleged ingestion of Zoloft and the alleged resultant birth defects to the non-resident minor
plaintiffs. Recognizing that West Virginia law cannot govern the petitioners’ claims because
their alleged injuries arose in other states, the Panel would be required to the apply the laws
of sixteen different states. Thus, the Panel acknowledged the conspicuous advantages to
conducting trials in the petitioners’ home states where the courts are familiar with their
respective state’s laws. After balancing the petitioners’ private interests against the state’s
public interests, the Panel concluded that the public interests of the state predominate in favor
of the petitioners bringing their claims in their home states.39
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
39
In this regard, the Panel found that “the subject Plaintiff Families’ respective home
states have a substantial interest in resolving disputes involving their residents who were
allegedly injured in those states by the prescription and ingestion of a medication therein.”
40
W.Va. Code § 56-1-1a(a)(7).
41
During oral argument, the respondents’ counsel stated that as of the time they filed
their motion to dismiss before the Panel, only minimal discovery has been directed to the
petitioners. The respondents’ counsel also stated that Pfizer had produced the same three
million pages of documents in every court where Zoloft litigation is pending and that
seventeen depositions had been taken of current and former Pfizer employees, which were
cross-noticed in the other courts from the federal multi-district litigation. All counsel agree
that an extraordinary amount of discovery remains to be done.
28
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 transferrable 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 transferrable 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
42
This is a reference to the federal multi-district litigation pending in Pennsylvania,
as well as the Zoloft litigation pending in other state courts.
29
petitioners “will not significantly expand the scope or geographical breadth of the Zoloft
litigation.”43
Based 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 residing in those states. Under the Hoover factors,44
we find no ground to warrant the issuance of a writ of prohibition.
43
The petitioners do not challenge the Panel’s ruling with respect to the eighth
statutory factor–whether the alternate forum provides a remedy. As discussed previously,
the Panel denied the respondents’ motion to dismiss two of the non-resident plaintiff families
after determining that there was no alternative forum in Texas and Michigan. Because the
petitioners do not specifically challenge the Panel’s rulings on the remaining statutory
factors, they will not be addressed.
44
Syl. Pt. 4, Hoover, 199 W.Va. 12, 483 S.E.2d 12.
30
III. Conclusion
For 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.
31