State ex rel. Surnaik Holdings of WV, LLC v. The Honorable Thomas A. Bedell ( 2020 )


Menu:
  • No. 19-1006 – State ex rel. Surnaik Holdings of West Virginia, LLC v. Bedell
    FILED
    November 20, 2020
    Workman, Justice, dissenting:                                                       released at 3:00 p.m.
    EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    For seventeen years, West Virginia’s trial courts have been guided by this
    Court’s seminal decision in In re West Virginia Rezulin Litigation, 
    214 W. Va. 52
    , 
    585 S.E.2d 52
     (2003), and its progeny, in deciding class certification issues arising under Rule
    23 of the West Virginia Rules of Civil Procedure. And for seventeen years, the Rezulin
    analysis has guided our courts to fair, just, and equitable results in determining which cases
    are suitable for certification and which are not. Today, however, the Court announces that
    Rezulin “utilized a vague, all things considered test that does not give the circuit courts any
    real guidance,” and determines, in a lengthy advisory opinion, 1 that henceforth we will be
    guided by “the federal courts’ interpretation of its Rule 23(b)(3).” Then, in its rush to fix
    something that isn’t broken, combined with its zeal to subordinate established West
    Virginia law to federal law, the majority has erected a bureaucratic mountain of fact-
    finding and legal analysis which a circuit court must climb prior to certifying a class, all
    for the benefit of corporate defendants, while completely ignoring the other side of the
    equation, that “[t]he class action device allows plaintiffs with individually small claims the
    opportunity for relief that would otherwise not be economically feasible, allowing them to
    collectively share the otherwise exorbitant costs of bringing and maintaining the lawsuit.”
    1
    See text infra.
    1
    Salem Int’l Univ., LLC v. Bates, 
    238 W. Va. 229
    , 237, 
    793 S.E.2d 879
    , 887 (2016)
    (Workman, J., concurring).
    I.
    I begin with the actual holding of this case: that “the circuit court has exceeded
    its legitimate powers by certifying the class while failing to undertake a thorough analysis
    in its determination of whether the class certification requirements of Rule 23 . . . were
    satisfied.” I have no quarrel with the proposition that “[b]efore 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).” Syl. Pt. 8,
    in part, Rezulin, 214 W. Va. at 56, 
    585 S.E.2d at 56
    . Additionally, I agree that in making
    this determination, the court is required to undertake a “thorough analysis,” and that its
    failure to do so “amounts to clear error.” State ex rel. Chemtall Inc. v. Madden, 
    216 W. Va. 443
    , 454, 
    607 S.E.2d 772
    , 783 (2004). I part company with the majority, however, in
    its conclusion that the experienced circuit court judge handling this litigation did not
    undertake a thorough analysis of the evidence and the governing law in crafting his
    decision. The court’s certification order – 14 pages of findings of fact, conclusions of law,
    and a trial plan, plus 3 pages of appended material delineating the geographical area of the
    class – demonstrates that the court had a comprehensive understanding of the evidence and
    how it fit within the framework of a Rule 23 analysis. The only fault I can find in the order
    2
    – and it is a fault, not a fatal flaw -- is that the court did not organize all of its findings and
    conclusions under specific headings: numerosity, commonality, typicality, adequate
    representation, predominance, and superiority of the class action mechanism. Rather, it
    made succinct, but not merely conclusory, findings under those headings, and then
    discussed the application of law to the facts at length in the portion of its order styled
    “Conclusions of Law.” 2
    Based upon the record before this Court, and on the factual findings and
    legal conclusions set forth in the circuit court’s order, it is difficult to envision a case better
    suited for resolution pursuant to the mechanism set forth in Rule 23 of the West Virginia
    Rules of Civil Procedure. Respondent’s complaint alleges that in the early morning hours
    of October 21, 2017, a warehouse in the 3800 block of Camden Avenue in Parkersburg,
    West Virginia, caught fire, and thereafter burned until October 29, 2017. The complaint
    further alleges that during this 8-day period of time, smoke and particulate matter from the
    fire and smoldering ruins constituted a nuisance and health hazard to residents and workers
    (in both private businesses and government offices) within an 8.5 mile radius of the
    warehouse. In the complaint and also in his deposition testimony, Respondent also alleges
    2
    The majority does find the organization of the circuit court’s analysis to be a fatal
    flaw, concluding that “[a]lthough the circuit court’s order does contain a bit more analysis
    in the ‘Conclusions of Law’ section by intertwining the predominance and superiority
    requirements together, this discussion does not cure the defects of its initial analysis.” This
    bit of analysis to which the majority sarcastically refers is 6 pages of findings and
    conclusions, supported by citations of numerous legal authorities.
    3
    that he and all other residents and workers suffered property damage in the form of smoke
    and particulates from the fire invading homes “at levels that interfered with the comfort,
    use, and enjoyment of their property,” together with inchoate damages such as annoyance
    and inconvenience; and further that he and at least some other residents and workers
    suffered personal injuries as well. In summary, in this case we have a large number of
    plaintiffs (estimated to be 57,000), experiencing harm in different degrees, 3 arising from a
    single event which took place in a defined location over a short period of time.
    In support of his motion for class certification, Respondent submitted expert
    testimony from three individuals whose credentials are not disputed. The first expert
    delineated the geographical boundary of the area allegedly impacted by the emission of
    smoke and particulate matter; specifically, the class area was defined as the area within
    3
    In this regard, the circuit court wrote that that “[b]ecause any questions relate
    solely to the issues of damages, at the very least, the proposed class action should be
    certified on the issues of liability and causation under Rule 23(c)(4).” (Emphasis added.)
    Thus, all of Petitioner’s complaints that 90% of the class suffering no damages at all – a
    highly misleading statement which reflects Petitioner’s apparent belief that the only
    damages recoverable in this action would be for bodily injury and/or noticeable alterations
    to property – are, if not a complete red herring, certainly not a death blow to the
    maintenance of a class action. “‘That class members may eventually have to make an
    individual showing of damages does not preclude class certification.’” Rezulin, 214 W.
    Va. at 72, 
    585 S.E.2d at
    72 (citing Smith v. Behr Process Corp., 
    54 P.3d 665
    , 675 (Wash.
    2002)). Further, “[a] circuit court’s consideration of a motion for class certification should
    not become a mini-trial on the merits of the parties’ contentions[,]” Rezulin, 214 W. Va.
    at 63, 
    585 S.E.2d at 63
    , which is exactly what Petitioner seeks and what the majority has
    gifted it.
    4
    which individual would have had exposure within a 24-hour average of at least 3
    micrograms per cubic meter of fine particles less than 2.5 microns in size. The second
    expert did disbursement modeling to draw the isopleths 4 within which individuals would
    have had exposure at this 3 micrograms per cubic meter level. Finally, the third expert, a
    physician, gave evidence tending to show that this level of exposure to particulate matter
    increased the risk of various health problems ranging in severity from discomfort to death.
    Ultimately, the circuit court certified a class consisting of all residents and
    businesses within an 8.5 mile radius of Petitioner’s warehouse. The court concluded that
    there were
    many common questions of law and fact, including to name
    only a few of the most important: questions concerning
    industry standards for fire protection systems; questions
    relating to what was stored in the warehouse; how the decision
    not to maintain the fire protection system [was] made; who
    made it; which of those chemicals burned; what the
    decomposition products of the waste chemicals was; the area
    of dispersion of smoke and particulate matter; and the potential
    for harm from contact, inhalation, or ingestion of the smoke
    and particulate matter.
    The court also concluded that “[b]ecause any individual questions relate solely to the issues
    of damages, at the very least, the proposed class action should be certified on the issues of
    liability and causation under Rule 23(c)(4).”
    4
    An isopleth is defined as a line on a map connecting points having equal
    incidence of a specified meteorological feature.
    5
    Reviewing the circuit court’s common questions of law and fact, it is hard to
    fathom the majority’s dismissive conclusion that the court’s order is “woefully inadequate”
    to demonstrate that those common questions predominate. In a recent case, we affirmed
    the guidance set forth in Rezulin that “[i]n deciding predominance, the ‘central question
    [is] whether “adjudication of the common issues in the particular suit has important and
    desirable advantages of judicial economy compared to all other issues, or when viewed by
    themselves.” 2 Newberg on Class Actions, 4th Ed., § 4.25 at 174.’” State ex rel. U-Haul Co.
    of W. Va. v. Tabit, No. 17-1052, 
    2018 WL 2304282
    , at *8 (W. Va. May 21, 2018)
    (memorandum decision) (citing Rezulin, 214 W. Va. at 72, 
    585 S.E.2d at 72
    )). We went
    on to explain that,
    [t]he predominance requirement does not demand that
    common issues be dispositive, or even determinative; it is not
    a comparison of the amount of court time needed to adjudicate
    common issues versus individual issues; nor is it a scale-
    balancing test of the number of issues suitable for either
    common or individual treatment. 2 Newberg on Class Actions,
    4th Ed., § 4.25 at 169-173. Rather, ‘[a] single common issue
    may be the overriding one in the litigation, despite the fact that
    the suit also entails numerous remaining individual questions.’
    Id. at 172.
    U-Haul., 
    2018 WL 2304282
    , at *9 (citation omitted). In the instant case, can there be any
    serious question that the predominant issues are those enumerated by the circuit court?
    And as a corollary proposition, can there be any serious question that thereafter, the court
    has a “variety of procedural options under Rule 23(c) and (d), to reduce the burden of
    6
    resolving individual damage issues, including bifurcated trials, use of subclasses or
    masters, pilot or test cases with selected class members, or even class decertification after
    liability is determined[]”? U-Haul., 
    2018 WL 2304282
    , at *9. 5
    Even more difficult to fathom is the majority’s conclusion that the circuit
    court’s finding with respect to superiority, Rule 23(b)(3), is “conclusory in that it listed
    cases where class certification was found to be appropriate in mass accident cases without
    giving any explanation as to why those particular cases fit the facts of this matter.” Again,
    the majority is parsing the court’s order paragraph by paragraph, without considering its
    findings and conclusions as an integrated whole. With respect to superiority, the court
    stressed the fact that “the damages suffered by most class members are too small to warrant
    the associated costs of pursuing such cases, such as basic filing fees, deposition fees,
    attorney time in processing, and expert witness fees.” And again, inasmuch as the court
    certified a class only as to liability and causation – essentially, was Petitioner negligent or
    reckless, and did that negligence or recklessness cause the warehouse fire which belched
    smoke and particulates for 8 days over an 8.5 mile radius – I am hard pressed to come up
    with any rationale which could possibly support the conclusion that a better way to handle
    the matter would be to require anyone claiming to have suffered injury and damage to file
    an individual lawsuit. Even accepting Petitioner’s claim that only 10% of those within the
    5
    See supra note 3.
    7
    8.5 mile radius suffered actual harm, 6 the result would be 5,700 individual lawsuits –
    enough to force the judicial system to its knees, notwithstanding the $1,140,000.00 in filing
    fees that would be generated.
    In summary, the majority’s decision in this case exalts form over substance,
    and requires that a circuit court’s order granting class certification must contain far more
    than the “detailed and specific showing” previously deemed sufficient. E.g., State ex rel.
    Municipal Water Works v. Swope, 
    242 W. Va. 258
    , 267-68, 
    835 S.E.2d 122
    , 131-32 (2019).
    Rather, the order will have to contain a level of claim-by-claim, issue-by-issue, defense-
    by-defense analysis somewhere between a blue book essay and a law review article in
    length. Here, where the class parameters have been so well defined by the testimony of
    expert witnesses, and the analysis of the circuit court is so clear and so evidently correct,
    one can only read the majority opinion as a result-driven attempt to steer the circuit court,
    on remand, in Getting to No.
    6
    The majority follows Petitioner down this particular rabbit hole, criticizing the
    circuit court’s finding that “owning or residing in a house that is invaded by noxious or
    harmful levels of smoke negligently released from a fire is a cognizable injury [to all class
    members],” by setting up a straw man argument as to whether the essential elements of the
    various causes of action alleged in the complaint “are capable of individualized or even
    generalized proof.” This is a merits question more properly addressed on motion for
    summary judgment; a certification inquiry under Rule 23 does not require plaintiff to prove
    his or her case, only to establish that the issues fall within the framework established in
    subsections (a) and (b) of the rule.
    8
    II.
    Having expressed my disagreement with the majority’s holding, I now turn
    to the lengthy advisory opinion 7 which precedes the relatively brief discussion of the actual
    issue in this case. Petitioner raised five issues in its brief: that common issues do not
    predominate in this case because only 10% of the class is likely to have been injured; that
    mass accident and toxic tort cases are inappropriate for class adjudication; that plaintiff
    cannot satisfy the certification requirements of standing and typicality because he concedes
    that he has not suffered any property damage; that the class members are not readily
    identifiable by reference to objective criteria; and that the circuit court failed to conduct a
    thorough analysis of the Rule 23 factors. In this latter regard, Petitioner’s entire argument
    7
    More than half of the majority’s “Discussion” could be classified either as (a) dicta,
    (b) an advisory opinion, or (c) the use of a backhoe to dig a one inch hole. This Court has
    defined dicta as language “which, by definition, is . . . unnecessary to the decision in the
    case and therefore not precedential. Black’s Law Dictionary 1100 (7th ed. 1999).” State
    ex rel. Med. Assurance of W. Va., Inc. v. Recht, 
    213 W. Va. 457
    , 471, 
    583 S.E.2d 80
    , 94
    (2003). With respect to advisory opinions, we have held that “the requirement of a
    justiciable controversy and the prohibition against advisory opinions are two sides of the
    same coin. We explained this in Syllabus Point 2 of Harshbarger v. Gainer [
    184 W. Va. 656
    , 659, 
    403 S.E.2d 399
    , 402 (1991)] when we held that ‘[c]ourts are not constituted for
    the purpose of making advisory decrees or resolving academic disputes. The pleadings and
    evidence must present a claim of legal right asserted by one party and denied by the
    other[.]’” State ex rel. Perdue v. McCuskey, 
    242 W. Va. 474
    , 478, 
    836 S.E.2d 441
    , 445
    (2019). I have chosen to refer to the scholarly exposition in this case as an advisory
    opinion, since the majority is quite clearly attempting to advise the circuit court with
    respect to how it should resolve an issue that has not actually been raised by anyone other
    than the majority: the sufficiency of the circuit court’s order with respect to the question of
    predominance. See text infra.
    9
    was that the court’s analysis of typicality and ascertainability 8 was insufficient, not its
    analysis of predominance. Although I believe that the first four of these issues are without
    merit, based on my review of the evidence contained in the appendix record, this is of no
    moment; the fact is that these issues all became moot when the majority decided the case
    on the ground that the circuit court’s order was insufficient to demonstrate the “thorough
    analysis” required by our case law, and specifically with respect to the circuit court’s
    findings of predominance and superiority.
    In this regard, the majority could have cited the comprehensive discussion of
    predominance set forth in Rezulin and its progeny, and rested its decision thereon.
    ‘A conclusion on the issue of predominance requires an
    evaluation of the legal issues and the proof needed to establish
    them. As a matter of efficient judicial administration, the goal
    is to save time and money for the parties and the pubic and to
    promise consistent decisions for people with similar claims.’
    In the Matter of Cadillac V8-6-4 Class Action, 
    93 N.J. 412
    ,
    430, 
    461 S.E.2d 736
    , 745 (1983). The predominance
    requirement is not a rigid test, but rather contemplates a review
    of many factors, the central question being whether
    ‘adjudication of the common issues in the particular suit has
    important and desirable advantages of judicial economy
    8
    Interestingly, this word is not found in either the text of Rule 23 or in any of this
    Court’s class action cases. Rather, it is a formulation discussed in some federal cases,
    describing the unremarkable concept that a class and its members must be readily
    identifiable with reference to objective criteria, “without extensive and individualized fact-
    finding or ‘mini-trials[.]’” Marcus v. BMW of N. Am., LLC, 
    687 F.3d 583
    , 592-93 (3rd Cir.
    2012) (citation omitted). In the instant case, the testimony of Respondent’s experts most
    certainly met any requirement of ascertainability. See text supra.
    10
    compared to all other issues, or when viewed by themselves.’
    2 Newberg on Class Actions, 4th Ed., § 4:25 at 174.
    Rezulin, 214 W. Va. at 72, 
    585 S.E.2d at 72
    ; see also U-Haul, 
    2018 WL 2304282
    , at *8
    (“In deciding predominance, the ‘central question [is] whether ‘adjudication of the
    common issues in the particular suit has important and desirable advantages of judicial
    economy compared to all other issues, or when viewed by themselves.’”) (citation omitted).
    Undaunted by the fact that Petitioner did not argue insufficiency of the circuit
    court’s analysis of predominance (it simply claimed that the court’s decision was erroneous
    because the existence or extent of individual damages would vary), or the fact that the issue
    of the sufficiency of the court’s analysis could easily be resolved under existing West
    Virginia law, the majority devotes pages of text to what is termed a “general review” of
    federal cases dealing with predominance. The majority notes with approval those cases
    that require the lower court to perform a “rigorous analysis,” or even a “more rigorous
    analysis” of class certification motions, as opposed to this Court’s “thorough analysis”
    standard. 9 (Emphasis added.) The majority further acknowledges the current trend in
    9
    In his concurring opinion in State ex rel. Chemtall Inc. v. Madden, 
    216 W. Va. 443
    , 458, 
    607 S.E.2d 772
    , 787 (2004), then-Justice Starcher commented on the federal
    courts’ seeming hostility toward class action lawsuits:
    In the instant case, the defendants argued that a ‘class action
    . . . may only be certified if the trial court is satisfied, after a
    rigorous analysis, that the prerequisites of Rule 23(a) have
    been satisfied.’ General Telephone Co. of Southwest v. Falcon,
    
    457 U.S. 147
    , 161, 
    102 S.Ct. 2364
    , 2372, 
    72 L.Ed.2d 740
    11
    federal courts “toward heightening plaintiffs’ burden . . . [which] has decidedly outpaced
    concern over providing a mechanism for litigating low-value claims.” 10 There is no
    apparent reason given for the majority’s clear preference for the anti-plaintiff position
    espoused by the federal courts cited in its opinion; and whatever the reason, it seems clear
    that the Court is signaling a retreat from what the United States Supreme Court once termed
    West Virginia’s “declar[ation of] independence from federal courts’ interpretation of the
    (1982) (emphasis added). As the majority opinion suggests,
    most federal courts have blithely accepted this argument and
    require a party seeking class action certification to endure a
    ‘rigorous’ analysis of their class certification evidence by the
    trial court.
    After carefully reading Rule 23 of our Rules of Civil
    Procedure, and reading the Rules as a whole, neither I nor my
    colleagues can find anything that requires a party to submit any
    motion to a ‘rigorous’ analysis by the trial court. Use of the
    term ‘rigorous’ suggests that a trial judge must exercise
    ‘harshness, rigidity, inflexibility,’ or be ‘severely exact or
    accurate; . . . stern . . . hard, inflexible, stiff, unyielding.’
    Frankly, it is difficult to determine how a litigant could achieve
    a ‘just, speedy and inexpensive’ resolution of a dispute when
    the trial judge, usually at the initial, pre-trial stages of the case,
    is being harsh, inflexible, exacting and unyielding in
    considering the parties’ motions.
    Chemtall, 216 W. Va. at 458, 
    607 S.E.2d at 787
     (footnote omitted).
    Ellen Meriwether, The Fiftieth Anniversary of the Rule 23 Amendments: Are
    10
    Class Actions on the Precipice?, 30 Antitrust, 23, 24 (Spring 2016).
    12
    Federal Rules – and particularly of Rule 23.” Smith v. Bayer Corp., 
    564 U.S. 299
    , 310
    (2011).
    I acknowledge that federal law is “the supreme law of the land,” West
    Virginia Constitution, article I, section 1, in all matters involving the interpretation of the
    United States Constitution and laws enacted by Congress. Further, I agree with the
    majority that review of federal cases can be beneficial in analyzing issues that arise under
    the West Virginia Rules of Civil Procedure, since our rules are largely consonant with
    (although not identical to, as the majority intimates) their federal counterparts. However,
    I am not required to, nor will I, march in lockstep with federal decisions that I believe erect
    barriers to West Virginia citizens’ right to seek redress for injuries in the courts of this
    State, pursuant to the laws of this State. As noted above, the majority acknowledges the
    existence of a “current trend toward heightening plaintiffs’ burden[,]” and my question is
    this: why does the majority apparently view this as a positive development in the federal
    law, and seek to bring West Virginia into line with this view?
    In this latter regard, the majority opinion intimates, although it does not
    directly state, that in State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 
    242 W. Va. 54
    , 
    829 S.E.2d 54
     (2019), a case in which two members of this Court did not
    participate, we effectively adopted federal analytical standards in class certification cases
    in lieu of the standards set in our own precedents. If this reading of Gaujot is accurate, then
    13
    the Court acted under cover of darkness; although several of the syllabus points in the case
    cite federal precedents, the concepts have long been established in our own case law. For
    example, although the Court in Gaujot cited only federal cases to support the legal
    principles set forth in syllabus points five, six and seven – all having to do with the limited
    and coincidental scope of merits issues in determining class certification questions – the
    Court admitted in the text of the opinion that “[o]ur prior decisions bear that out],]” 242
    W. Va. at 63, 829 S.E.2d at 63 (citing Chemtall, 216 W. Va. at 455, 
    607 S.E.2d at 784
    ;
    Ways v. Imation Enterprises Corp., 
    214 W. Va. 305
    , 314, 
    589 S.E.2d 36
    , 45 (2003)).
    In summary, although the majority’s lengthy exposition of federal law makes
    for interesting reading, most of it is wholly unnecessary to the decision in this case.
    Further, to the extent that the majority is attempting to sub silentio overrule any or all of
    the precepts set forth in Rezulin and its progeny, in order to bring West Virginia in line
    with the “current [federal] trend toward heightening plaintiffs’ burden[,]” 11 I strongly
    object both to the majority’s tactics and to its intentions. This Court’s precedents have
    stood the test of time and guided our circuit courts, as well as this Court on appellate
    review, to results that are fair to all parties.
    11
    See supra page 12 & note 10.
    14
    Indeed, our precedents guided the court below – a very experienced jurist --
    to a fair and legally sustainable result: permitting a class action suit to go forward on the
    issues of liability and causation, in a case arising from a single event which took place in a
    defined location over a short period of time, affecting everyone who lived and/or worked
    within the defined location. The majority reverses this decision, demanding that the court
    further explain, at great length and in excruciating detail, how these issues could be said to
    predominate over issues of damages; and that the court further explain superiority, i.e., how
    class certification could possibly be a better framework for resolution of 57,000 cases (or
    even 5,700 cases) than requiring each plaintiff to file an individual lawsuit.
    The majority opinion is flatly wrong in its analysis of the facts, creates
    unnecessary delay in this case, and portends a sea change in our approach to class action
    cases – a change for the worse. Accordingly, I dissent.
    15