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

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
FILED
_____________
November 20, 2020
released at 3:00 p.m.
No. 19-1006 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL.
SURNAIK HOLDINGS OF WV, LLC,
Petitioner
V.
THE HONORABLE THOMAS A. BEDELL,
SITTING BY ASSIGNMENT AS
JUDGE OF THE CIRCUIT COURT OF WOOD COUNTY
AND PAUL SNIDER, ON BEHALF OF HIMSELF
AND A CLASS OF OTHERS SIMILARLY SITUATED,
Respondents
________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
________________________________________________
Submitted: September 23, 2020
Filed: November 20, 2020
Ryan McCune Donovan Alex McLaughlin
J. Zak Ritchie John H. Skaggs
Andrew C. Robey Calwell Luce diTrapano PLLC
Hissam Forman Donovan Ritchie PLLC Charleston, West Virginia
Charleston, West Virginia Attorneys for the Respondent
Attorneys for the Petitioner Paul Snider, on behalf of himself and
a class of others similarly situated
JUSTICE JENKINS delivered the Opinion of the Court.
JUSTICE HUTCHISON concurs and reserves the right to file a concurring opinion.
JUSTICE WORKMAN dissents and reserve the right to file a dissenting opinion.
2
SYLLABUS BY THE COURT
1. “This Court will review a circuit court’s order granting or denying a
motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil
Procedure [1998] under an abuse of discretion standard.” Syllabus point 1, In re
West Virginia Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).
2. “‘A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.’ Syllabus
Point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).”
Syllabus point 1, State ex rel. Healthport Technologies, LLC v. Stucky, 239 W. Va. 239,
800 S.E.2d 506 (2017).
3. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
i
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.” Syllabus point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
4. “Before certifying a class under Rule 23 of the West Virginia Rules of
Civil Procedure [1998], a circuit court must determine that the party seeking class
certification has satisfied all four prerequisites contained in Rule 23(a)—numerosity,
commonality, typicality, and adequacy of representation—and has satisfied one of the three
subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a
case should be allowed to proceed on behalf of the class proposed by the party.” Syllabus
point 8, In re West Virginia Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).
5. “‘Whether the requisites for a class action exist rests within the sound
discretion of the trial court.’ Syllabus Point 5, Mitchem v. Melton, 167 W. Va. 21, 277
S.E.2d 895 (1981).” Syllabus point 5, In re West Virginia Rezulin Litigation, 214 W. Va.
52, 585 S.E.2d 52 (2003).
6. “A class action may only be certified if the trial court is satisfied, after
a thorough analysis, that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil
ii
Procedure have been satisfied. Further, the class certification order should be detailed and
specific in showing the rule basis for the certification and the relevant facts supporting the
legal conclusions.” Syllabus point 8, State ex rel. Chemtall Inc. v. Madden, 216 W. Va.
443, 607 S.E.2d 772 (2004).
7. When a class action certification is being sought pursuant to West
Virginia Rule of Civil Procedure 23(b)(3), a class action may be certified only if the circuit
court is satisfied, after a thorough analysis, that the predominance and superiority
prerequisites of Rule 23(b)(3) have been satisfied. The thorough analysis of the
predominance requirement of West Virginia Rule of Civil Procedure 23(b)(3) includes (1)
identifying the parties’ claims and defenses and their respective elements; (2) determining
whether these issues are common questions or individual questions by analyzing how each
party will prove them at trial; and (3) determining whether the common questions
predominate. In addition, circuit courts should assess predominance with its overarching
purpose in mind—namely, ensuring that a class action would achieve economies of time,
effort, and expense, and promote uniformity of decision as to persons similarly situated,
without sacrificing procedural fairness or bringing about other undesirable results. This
analysis must be placed in the written record of the case by including it in the circuit court’s
order regarding class certification.
iii
8. A circuit court’s failure to conduct a thorough analysis of the
requirements for class certification pursuant to West Virginia Rules of Civil Procedure
23(a) and/or 23(b) amounts to clear error.
iv
Jenkins, Justice:
This matter is before this Court on a petition for writ of prohibition.
Respondent the Honorable Thomas A. Bedell, sitting by assignment as Judge of the Circuit
Court of Wood County, certified a class action against Petitioner, Surnaik Holdings of WV,
PLLC (“Surnaik”). The circuit court named Respondent Paul Snider (“Mr. Snider”) as
class representative. Surnaik asserts that the circuit court clearly erred in certifying this
class and asks this Court to prohibit the circuit court from conducting any further
proceedings in this case until the circuit court has vacated its class certification order.
Based upon the record before us, the arguments of the parties, and the applicable law, we
find that the circuit court exceeded its jurisdiction by failing to conduct an appropriate and
thorough analysis of the West Virginia Rules of Civil Procedure 23(a) and 23(b) class
certification requirements. Accordingly, we grant the writ of prohibition as moulded and
vacate the circuit court’s order certifying the class action.
I.
FACTUAL AND PROCEDURAL HISTORY
In the early morning hours of Saturday, October 21, 2017, a fire erupted at a
warehouse owned by Surnaik in Parkersburg, West Virginia. The fire burned from October
21 to October 29. Mr. Snider asserts that the fire “emitted a plume of smoke—consisting
primarily of particulate matter and gases—that adversely impacted neighboring property
owners and lessees for days, residents as well as businesses and government agencies.”
Mr. Snider further alleges that “[t]he most obvious and immediate adverse impact—as well
1
as the one that is common to all members of the class—is annoyance resulting from the
smoke itself, which at certain concentrations is irritating to the nose and throat of most[,]
if not all[,] persons.”
Mr. Snider, on behalf of himself and on behalf of a class of others similarly
situated, filed a complaint against Surnaik in the Circuit Court of Wood County, on October
30, 2017. 1 In the complaint, Mr. Snider alleged negligence; reckless, willful, and wanton
indifference motivated by financial gain; nuisance; trespass; and “class action allegations.”
Furthermore, in the complaint, Mr. Snider sought to “represent a class that consists of all
residents and businesses within an 8.5 mile radius of the warehouse, which was located on
the 3800 block of Camden Avenue, in Parkersburg, West Virginia.” Mr. Snider indicated
that “[t]he radius includes at least the following cities, towns, and population clusters in
the State of West Virginia: Parkersburg, Vienna, Blennerhassett, Lubeck, Washington, and
Waverly. It also includes one population cluster in the State of Ohio, around Belpre, Ohio.”
1
Surnaik represented that
[i]n a race to the courthouse, five separate class action cases
were filed against [it] or related entities. This case is the only
active case remaining, as the other four cases have either been
dismissed with prejudice or otherwise abandoned. See Barker,
et al. v. Saurabh Naik, et al., No. 2:17-cv-4387 (S.D. W. Va.)
(dismissed with prejudice); Timothy Callihan, et al. v. Surnaik
Holdings of WV, LLC, et al., No. 2:17-cv-4386 (S.D. W. Va.)
(pending, but abandoned); Steve Mohwish, et al. v. Sirnaik,
LLC, et al., No. 2:17-cv-4417 (S.D. W. Va.) (voluntarily
dismissed); Snodgrass v. Surnaik Holdings of WV, LLC, No.
18-C-35 (Wood County) (voluntarily dismissed).
2
Mr. Snider requested compensatory damages in the form of diminution in value of
property, loss of the right to use and enjoy property, lost business profits, and personal
injuries, as well as punitive damages. Surnaik answered the complaint in November 2018. 2
Subsequently, on April 30, 2019, Mr. Snider filed a motion for class
certification and memorandum of law in support thereof (“the motion”). In the motion,
Mr. Snider defined the class 3 as follows:
All lawful possessors—primarily owners and lessees—of real
property located within one [of] the isopleths depicted on the
maps attached hereto as Exhibits 1-A, 1-B, and 1-C, who did
one or more of the following in October 2017:
(1) Resided on the property within the isopleth; or
(2) Conducted business operations, including those of a non-
profit business, on the property within the isopleth; or
(3) Conducted state, county, [or] municipal government
operations on the property within the isopleths.
Mr. Snider further alleged that the requirements of West Virginia Rule of Civil Procedure
23(a) 4 were met: numerosity, commonality, typicality, and adequacy of representation. In
2
It appears from the limited record before us that the large amount of time
between the filing of the complaint and the filing of the answer is because the matter had
been removed to federal court and then remanded back to the circuit court prior to the filing
of an answer.
3
Mr. Snider noted that this class of individuals “includes the small
percentage (roughly 14%) of property possessors that are citizens of Ohio[.]”
4
West Virginia Rule of Civil Procedure 23(a) provides as follows:
3
addition, Mr. Snider asserted that this action also met the requirements of Rule 23(b)(3) 5—
predominance and superiority.
(a) Prerequisites to a class action.—One or more members of
a class may sue or be sued as representative parties on behalf
of all only if (1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
5
West Virginia Rule of Civil Procedure 23(b) provides that a class action
may be maintained only if the prerequisites of Rule 23(a) are met in addition to at least one
of the following requirements:
(1) The prosecution of separate actions by or against individual
members of the class would create a risk of
(A) Inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing the
class, or
(B) Adjudications with respect to individual members of the
class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications
or substantially impair or impede their ability to protect their
interests; or
(2) The party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to
the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. The matters pertinent to the
findings include: (A) the interest of members of the class in
individually controlling the prosecution or defense of separate
4
On May 31, 2019, Surnaik responded to Mr. Snider’s motion, contending
that class certification is not appropriate because (1) a class cannot be certified when a
significant number of proposed class members are uninjured; (2) a class action is not
superior to other available methods for adjudication of the matter; (3) Mr. Snider is not an
adequate representative because he knows little about the case and admitted he could not
be fair to certain class members; and (4) Mr. Snider’s claims are not typical of the class
claims because he has not suffered any property damage. As such, Surnaik urged the circuit
court to deny the motion for class certification because Mr. Snider failed to satisfy all four
prerequisites contained in Rule 23(a)—namely typicality and adequacy of representation—
and the predominance and superiority requirements of Rule 23(b)(3). Additionally,
Surnaik contended that Mr. Snider failed to satisfy the implicit requirement of
ascertainability, as well as standing. Mr. Snider then filed a reply in support of his class
certification motion.
actions; (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of
the class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a
class action.
W. Va. R. Civ. P. 23(b).
5
The circuit court held a hearing on the motion for class certification on July
8, 2019. 6 Following the hearing, the circuit court entered its order granting class
certification and essentially adopted Mr. Snider’s class definition. In the “Findings of Fact”
section of its order, the circuit court noted that Mr. Snider provided expert testimony
“delineating the geographical boundary of the area allegedly impacted by a 24-hour
average of at least three micrograms per cubic meter (‘ug/m3’) of fine particles less than
2.5 microns in size (‘PM2.5’).” The circuit court further noted that Mr. Snider submitted
expert testimony “tending to show that those levels of fine particulate matter increase the
risk of injury, resulting in death, asthma, heart attacks, and coronary artery thickening in a
small percentage of persons subjected to them, and some level of discomfort in a much
larger percentage of individuals.” Lastly, the circuit court noted that Mr. Snider provided
“evidence tending to show that the area within the same geographical boundary
experienced a peak total suspended particulate level (‘TSP’) of at least 100 ug/m3.” The
circuit court went on to
find[] that the following requirements for certification are met:
a. Numerosity
The Class consists of an estimated 57,000 residents and
additional businesses in the area surrounding the warehouse
fire which are alleged to have suffered damages as a result of
the Warehouse Fire. Joinder is impracticable[,] and the
numerosity requirement of W. Va. R. Civ. P. 23(a) is satisfied.
A transcript of the hearing was not included in either the joint appendix or
6
the supplemental appendix filed in this matter.
6
b. Commonality
Common questions of law and fact exist for each of the Class
Members with regard to the alleged conduct of the Defendant.
Among these are questions relating to the Defendant’s liability
for their alleged negligent failure to maintain the fire protection
system in the warehouse and the geographical area impacted
by harmful levels of smoke from the fire. These issues are
central to this case and are sufficient to establish commonality
under W. Va. R. Civ. P. 23(a).
c. Typicality
Class Representative Paul Snider testified in his deposition that
he suffered noxious levels of smoke in his home for days
following the Warehouse Fire and that he and his wife both
suffered respiratory impairments—in his case, difficulty
breathing diagnosed for the first time as asthma—as a result of
the Warehouse Fire. The Court finds that these claims are
typical of absent Class Members in this litigation with elements
of proof and damages typical of absent Class Members. The
bases for compensation asserted by the Class Representative—
which include damages for annoyance and inconvenience from
having his home invaded by noxious smoke—are consistent
with and typical of the claims available to absent Class
Members, including those claiming property damage.
Therefore, the element of typicality is satisfied under W. Va.
R. Civ. P. 23(a).
d. Adequate Representation
The Class Representative’s interests do not conflict with, and
are co-extensive with, those of absent Class Members. Paul
Snider, the Class Representative, testified at the hearing and
demonstrated sufficient interest in, knowledge of, and
involvement with the case. Additionally, this Court recognizes
the experience of the counsel designated as Class Counsel
below, and finds that the requirement of adequate
representation under W. Va. R. Civ. P. 23(a) has been fully
met.
e. Predominance of Common Issues
Plaintiff[] commonly assert[s] that the Defendant was
negligent and recklessly indifferent to the well-being of its
neighbors in failing to maintain its fire protection system, and
that an award of compensatory and punitive damages to
7
residents, businesses, and government agencies in the area
impacted by noxious and harmful levels of smoke from the
Warehouse Fire is therefore appropriate. The Court finds that
the overarching liability issues predominate over any
individual questions, favoring class treatment consistent with
W. Va. R. Civ. P. 23(b)(3).
f. Superiority of the Class Action Mechanism
The class action mechanism is ideally suited for resolving these
matters. Class certification promotes efficiency and
uniformity of judgment, among other reasons, because the
many Class Members will not be forced to separately pursue
claims arising from the same incident, which might lead to
inconsistent verdicts. The Court specifically finds that the
class action mechanism is superior to any available
mechanisms for aggregating many individual claims, including
before the West Virginia Mass Litigation Panel, because 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.
In the “Conclusions of Law” section of its order, the circuit court further
found that “[t]he weight of authority from around the United States, in state and federal
courts, favors class-wide treatment and resolution in single event mass catastrophe cases,
particularly of non-personal injury and property-based classes, and particularly for the
resolution of the common issues of liability.” Additionally, the circuit court stated that
despite Surnaik’s argument that many class members are uninjured because not everyone
suffered bodily injury or will require property clean-up, “the universe of legally cognizable
injuries is not so narrowly defined.” The circuit court concluded 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.” It found that Mr. Snider had standing because he “testified
8
in his deposition that his own house was invaded by smoke from the Warehouse Fire and
that the invasion by this smoke was perceptible and noxious, that he felt compelled to wear
a dust mask, . . . that it was unpleasant[,]” and that “this alleged injury is a legally
cognizable injury[.]” The circuit court explained that the testimony of Mr. Snider’s experts
taken together, supports the inference that all putative Class
Members—everyone with[in] the Class Area set forth in the
attached maps—suffered the legally cognizable injury of
having had their homes or businesses invaded by harmful and
noxious levels of smoke negligently released from a fire,
whether or not those individuals suffered any bodily injury.
Consequently, the circuit court “conclude[d] that all putative Class Members and [Mr.
Snider,] himself[,] suffered an alleged cognizable injury, and that [Mr. Snider] has
submitted evidence supporting these allegations of cognizable injury.” It further concluded
that “[t]he Class action mechanism is plainly superior to any other mechanism available to
Class Members.” The circuit court then laid out its trial plan which included two phases:
(1) a class wide trial on common issues and (2) follow-up hearings for individual
determinations regarding losses and damages. After the entry of the circuit court’s order,
Surnaik filed the instant petition on November 4, 2019, seeking to prohibit enforcement of
the class certification order.
II.
STANDARD FOR ISSUANCE OF WRIT
Generally, “[t]his Court will review a circuit court’s order granting or
denying a motion for class certification pursuant to Rule 23 of the West Virginia Rules of
9
Civil Procedure [1998] under an abuse of discretion standard.” Syl. pt. 1, In re W. Va.
Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003). However, Surnaik seeks a writ of
prohibition, and we have said that “‘[a] writ of prohibition will not issue to prevent a simple
abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction
or having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.’ Syllabus
Point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).”
Syl. pt. 1, State ex rel. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 506(2017). We previously have set forth the following standard for issuance of a writ of
prohibition when it is alleged a lower court is exceeding its authority:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996); see also
Rezulin, 214 W. Va. at 62, 585 S.E.2d at 62 (same). While we need not find that all factors
are present, we attach “substantial weight” to the factor that asks “whether the lower
10
tribunal’s order is clearly erroneous as a matter of law[.]” Id. Further, we have held that
“an order awarding class action standing is . . . reviewable, but only by writ of prohibition.”
State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot, 242 W. Va. 54, 61 n.12, 829 S.E.2d 54,
61 n.12 (quoting Syl. pt. 2, in part, McFoy v. Amerigas, Inc., 170 W. Va. 526, 295 S.E.2d
16 (1982)). With these considerations in mind, we turn to the petition before us.
III.
DISCUSSION
In this matter of prohibition, Surnaik asserts the circuit court clearly erred in
several respects in certifying the class action. First, Surnaik argues that the circuit court
erred by certifying a class in which only 10% 7 of the class is likely to have been injured,
thereby failing to satisfy the predominance requirement of West Virginia Rule of Civil
In the deposition of Mr. Snider’s expert, Dr. Mike McCawley, the following
7
exchange occurred:
Q. So the number that you are trying to reach is, as we kind of
discussed before, what’s the threshold at which someone could
have inflammation?
A. Correct.
Q. Not the threshold at which a significant number of people
would have—
A. Correct.
Q. —Inflammation?
A. Yeah, and that’s the difference between the two.
Q. So with your number, it could be the case that only 10% of
the people are exposed, for example?
A. Correct.
Q. Okay. Because you’re setting that floor where it’s possible
to be harmed?
A. Yes.
11
Procedure 23(b)(3). Second, Surnaik contends that mass accident and toxic tort matters,
such as this one, are not appropriate for class adjudication pursuant to West Virginia Rule
of Civil Procedure 23(b)(3). Third, Surnaik asserts that because Mr. Snider conceded he
did not suffer any property damage, the requirements of standing and typicality preclude
him from representing a class seeking that relief. See generally W. Va. R. Civ. P. 23(a).
Fourth, Surnaik alleges that the circuit court erred by certifying a class whose members are
not readily identifiable by reference to objective criteria. Lastly, Surnaik argues that the
circuit court failed to conduct a thorough analysis of the Rule 23 requirements. We find
that Surnaik’s issues are intertwined with the overriding issue primarily being the circuit
court’s failure to conduct a thorough analysis, under Rules 23(a) and 23(b) and, as such,
we consider them together with a focus on the Rule 23(b)(3) class certification
requirements. Upon consideration of these arguments, we agree with Surnaik that the
circuit court failed to conduct a thorough analysis of the Rule 23 class certification
requirements, conclude that the circuit court clearly erred, and find that Surnaik is entitled
to relief in prohibition as moulded herein.
This Court consistently has held 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). As
long as these prerequisites to class certification are met, a case
should be allowed to proceed on behalf of the class proposed
by the party.
12
Syl. pt. 8, In re W. Va. Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (emphasis added). See
also Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 525, 694 S.E.2d 815, 858
(2010) (“‘To be maintainable as a class action, a suit must meet not only the prerequisites
of Rule 23(a), but also the additional requirements of one of the subparts of Rule 23(b).’
Cleckley, Davis, & Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil
Procedure § 23(b)[2], at 543.”). Furthermore, “‘[w]hether the requisites for a class action
exist rests within the sound discretion of the trial court.’ Syllabus Point 5, Mitchem v.
Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981).” Syl. pt. 5, Rezulin, 214 W. Va. 52, 585
S.E.2d 52.
However, class certification determinations are not perfunctory. See
Burdette v. FMC Corp., 566 F. Supp. 808, 813 n.3 (S.D.W. Va. 1983) (“Certification is not
a perfunctory act. Doctor v. Seaboard Coastline R. Co., 540 F.2d 699 (4th Cir. 1976);
Windham v. Am. Brands, Inc., 565 F.2d 59, 64, n.6 (4th Cir. 1977), cert. denied, 435 U.S.
968, 98 S. Ct. 1605, 56 L. Ed. 2d 58 [(____)]; Shelton v. Pargo, Inc., 582 F.2d 1298, 1312-
1315 (4th Cir. 1978); Belcher v. Bassett Furniture, 588 F.2d 904, 906 (4th Cir. 1978).”).
The party who proposes certification bears the burden of proving that certification is
warranted. See Syl. pt. 4, Rezulin, 214 W. Va. 52, 585 S.E.2d 52. Moreover, the circuit
court must give careful consideration to whether the party has met that burden. “A class
action may only be certified if the trial court is satisfied, after a thorough analysis, that the
prerequisites of Rule 23(a) of the West Virginia Rules of Civil Procedure have been
13
satisfied. Further, the class certification order should be detailed and specific in showing
the rule basis for the certification and the relevant facts supporting the legal conclusions.”
Syl. pt. 8, State ex rel. Chemtall Inc. v. Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004)
(emphasis added). Further “failure to conduct a thorough analysis . . . amounts to clear
error[,]” Chemtall, 216 W. Va. at 454, 607 S.E.2d at 783, and an abuse of discretion. See
Brown v. Nucor Corp., 785 F.3d 895, 902 (4th Cir. 2015) (“A district court abuses its
discretion when it materially misapplies the requirements of Rule 23.”).
At the outset, we find a general review of the status of how Rule 23(b)(3)’s
predominance requirement is treated in the federal courts to be beneficial to the Court’s
analysis in this matter. 8 The federal courts have delineated what is actually necessary in
order to satisfy this requirement. First, satisfying the predominance requirement is much
more demanding than the general commonality requirement under Rule 23(a). See, e.g.,
Comcast Corp. v. Behrend, 569 U.S. 27, 34, 133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515(2013) (“If anything, Rule 23(b)(3)’s predominance criterion is even more demanding than
Rule 23(a). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-624, 117 S. Ct. 2231,
[2250,] 138 L. Ed. 2d 689 (1997).”); Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 n.4
8
“Because the West Virginia Rules of Civil Procedure are practically
identical to the Federal Rules, we give substantial weight to federal cases, especially those
of the United States Supreme Court, in determining the meaning and scope of our rules.
See generally Burns v. Cities Serv. Co., 158 W. Va. 1059, 217 S.E.2d 56 (1975); Aetna
Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770(1963).” Painter v. Peavy, 192 W. Va. 189, 192 n.6, 451 S.E.2d 755, 758 n.6 (1994).
14
(4th Cir. 2001) (“In a class action brought under Rule 23(b)(3), the commonality
requirement of Rule 23(a)(2) is subsumed under, or superseded by, the more stringent Rule
23(b)(3) requirement that questions common to the class predominate over other
questions.” (internal quotations and citations omitted)).
Additionally, the federal courts have acknowledged that when undertaking
an examination pursuant to the Rule 23(b)(3) predominance requirement, a rigorous
analysis must occur. For example, the United States Court of Appeals for the Third Circuit
has recognized that “the ‘predominance requirement imposes a more rigorous obligation
upon a reviewing court to ensure that issues common to the class predominate over those
affecting only individual class members.’ Sullivan v. DB Inv., Inc., 667 F.3d 273, 297 (3d
Cir. 2011).” Reinig v. RBS Citizens, N.A., 912 F.3d 115, 127 (3d Cir. 2018) (emphasis
added) (footnote omitted). See also Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 658
(4th Cir. 2019), cert. denied, ___ U.S. ___, 140 S. Ct. 676, 205 L. Ed. 2d 440 (2019) (“The
predominance inquiry calls upon courts to give careful scrutiny to the relation between
common and individual questions in the case.” (internal quotations and citations omitted));
In re High-Tech Employee Antitrust Litig., 985 F. Supp. 2d 1167, 1178-79 (N.D. Cal. 2013)
(“A court’s class-certification analysis must be rigorous and may entail some overlap with
the merits of the plaintiff’s underlying claim. This rigorous analysis applies to both Rule
23(a) and Rule 23(b).” (internal quotations and citations omitted)). 9
9
Additionally, we note that there is a “current trend towards heightening
plaintiffs’ burden . . . [which] has decidedly outpaced concern over providing a mechanism
15
Next, federal courts have further delineated what the lower court must
actually consider in its examination in regard to the predominance requirement. The
United States Supreme Court recently explained how evaluation of the predominance
requirement works:
An individual question is one where members of a proposed
class will need to present evidence that varies from member to
member, while a common question is one where the same
evidence will suffice for each member to make a prima facie
showing or the issue is susceptible to generalized, class-wide
proof. The predominance inquiry asks whether the common,
aggregation-enabling, issues in the case are more prevalent or
important than the non-common, aggregation-defeating,
individual issues. When one or more of the central issues in
the action are common to the class and can be said to
predominate, the action may be considered proper under Rule
23(b)(3) even though other important matters will have to be
for litigating low-value claims.” Ellen Meriwether, The Fiftieth Anniversary of the Rule
23 Amendments: Are Class Actions on the Precipice?, 30 Antitrust, 23, 24 ( Spring 2016).
This trend is demonstrated in a recent United States Supreme Court decision Comcast
Corp. v. Behrend, 569 U.S. 27, 29, 133 S. Ct. 1426, 1429, 185 L. Ed. 2d 515 (2013). In
Comcast, the Supreme Court addressed class certification and through the prism of Federal
Rule of Civil Procedure 23(b)(3). The Supreme Court ultimately reversed certification on
the ground that the plaintiff’s expert proffered a damages model measuring aggregate class-
wide damages under four theories of liability, where only one of the theories had been held
by the district court to be provable with common evidence. See generally id. However,
[s]ince that decision, there has been considerable debate as to
its import and breadth, with some maintaining that the ruling
‘breaks no new ground on the standard of certifying class
actions’ while others urge that it requires a demonstration of
‘commonality of damages’ and a damages model that would
allow individual damages to be established with common
proof.
Meriwether, supra, at 24 (footnotes omitted).
16
tried separately, such as damages or some affirmative defenses
peculiar to some individual class members.
Tyson Foods, Inc. v. Bouaphakeo, ____ U.S. ___, 136 S. Ct. 1036, 1045, 194 L. Ed. 2d 124(2016) (alteration, citations, and internal quotation marks omitted).
Additionally, several of the United States Courts of Appeals also have
formulated tests for how this requirement is met. For example, the United States Court of
Appeals for the Second Circuit has explained that
[t]he “predominance” requirement of Rule 23(b)(3) “tests
whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.” Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 623, 117 S. Ct. 2231, 138 L. Ed. 2d
689 (1997). The requirement is satisfied “if resolution of some
of the legal or factual questions that qualify each class
member’s case as a genuine controversy can be achieved
through generalized proof, and if these particular issues are
more substantial than the issues subject only to individualized
proof.” Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d
Cir. 2002); see also Myers [v. Hertz Corp.], 624 F.3d [537,] []
547.
A court examining predominance must assess (1) “the
elements of the claims and defenses to be litigated,” (2)
“whether generalized evidence could be offered to prove those
elements on a class-wide basis or whether individualized proof
will be needed to establish each class member’s entitlement to
relief,” and (3) “whether the common issues can profitably be
tried on a class[-] wide basis, or whether they will be
overwhelmed by individual issues.” Johnson v. Nextel
Commc’ns Inc., 780 F.3d 128, 138 (2d Cir. 2015).
Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 512 (2d Cir. 2020). Similarly, the
United States Court of Appeals for the Fourth Circuit described the predominance inquiry
as “focus[ing] not only on the existence of common questions, but also on how those
17
questions relate to the controversy at the heart of the litigation.” EQT Prod. Co. v. Adair,
764 F.3d 347, 366 (4th Cir. 2014). The Fourth Circuit additionally recognized that when
undertaking the predominance analysis, “the [United States] Supreme Court has noted
[that] ‘[c]onsidering whether questions of law or fact common to class members
predominate begins . . . with the elements of the underlying cause of action.’ Erica P. John
Fund, Inc. v. Halliburton Co., [563] U.S. [804,] [809], 131 S. Ct. 2179, 2184, 180 L. Ed.
2d 24 (2011) (internal quotation marks omitted).” Adair, 764 F.3d at 367 n.19.
Furthermore, the Court of Appeals for the Third Circuit has explained its
predominance examination as follows:
Predominance tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation, a standard
far more demanding than the commonality requirement of Rule
23(a), requiring more than a common claim[.] Issues common
to the class must predominate over individual issues[.]
Because the nature of the evidence that will suffice to resolve
a question determines whether the question is common or
individual, a district court must formulate some prediction as
to how specific issues will play out in order to determine
whether common or individual issues predominate in a given
case[.] If proof of the essential elements of the cause of action
requires individual treatment, then class certification is
unsuitable. Accordingly, we examine the elements of
plaintiffs’ claim “through the prism” of Rule 23 to determine
whether the District Court properly certified the class.
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310-11 (3d Cir. 2008), as amended
(Jan. 16, 2009) (internal quotations and citations omitted) (footnote omitted). See also
Reinig, 912 F.3d at 127-28 (“At the class certification stage, the predominance requirement
is met only if the district court is convinced that the essential elements of the claims brought
18
by a putative class are ‘capable of proof at trial through evidence that is common to the
class rather than individual to its members. In practice, this means that a district court must
look first to the elements of the plaintiffs’ underlying claims and then, ‘through the prism’
of Rule 23, undertake a rigorous assessment of the available evidence and the method or
methods by which the plaintiffs propose to use the evidence to prove those elements. If
proof of the essential elements of the claim requires individual treatment, then class
certification is unsuitable.”).
Likewise, the United States Court of Appeals for the Fifth Circuit has stated
that
Federal Rule of Civil Procedure 23(b)(3) requires the court to
determine whether the questions of law or fact common to class
members predominate over any questions affecting only
individual members. This entails identifying the substantive
issues that will control the outcome, assessing which issues
will predominate, and then determining whether the issues are
common to the class, a process that ultimately prevents the
class from degenerating into a series of individual trials.
Absent this analysis, “it [is] impossible for the court to know
whether the common issues would be a ‘significant’ portion of
the individual trials . . . much less whether the common issues
predominate.”
Seeligson v. Devon Energy Prod. Co., L.P., 761 F. App’x 329, 338 (5th Cir. 2019)
(quotations and citations omitted) (footnotes omitted).
One of the most succinct tests establishing what a court should examine when
undertaking an analysis of the predominance requirement was set forth by the United States
19
Court of Appeals for the Eleventh Circuit’s decision in Brown v. Electrolux Home
Products, Inc., 817 F.3d 1225 (11th Cir. 2016). In Brown,
the Eleventh Circuit provided a three-step approach for
evaluating predominance: (1) identify the parties’ claims and
defenses and their elements, (2) determine whether these issues
are common questions or individual questions by analyzing
how each party will prove them at trial, and (3) determine
whether the common questions predominate. In addition, . . .
district courts should assess predominance with its overarching
purpose in mind—namely, ensuring that a class action would
achieve economies of time, effort, expense, and promote
uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other
undesirable results.
Ace Tree Surgery, Inc. v. Terex S. Dakota, Inc., 332 F.R.D. 402, 408-09 (N.D. Ga. 2019)
(internal quotations and citations omitted). Accordingly, it is clear that the federal courts
have closely considered what is necessary under Rule 23(b)(3).
Turning now to West Virginia law, we examine class certification
requirements—specifically, the Rule 23(b)(3) predominance requirement—as discussed in
In re West Virginia Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003). While the
Rezulin Court created eleven new syllabus points regarding class actions, none of them
specifically relate to what the circuit court is required to consider in the context of Rule
23(b)(3)’s predominance and superiority requirements.
Rezulin did recognize that if a class is being certified pursuant to Rule
23(b)(3), then
20
a class action may be certified to proceed on behalf of a class
[only] if the trial court finds “that the questions of law or fact
common to the members of the class predominate over any
questions affecting only individual members,” and finds that a
class action “is superior to other available methods for the fair
and efficient adjudication of the controversy.”
Rezulin, 214 W. Va. at 71, 585 S.E.2d at 71. The Rezulin Court also observed that “[t]he
predominance criterion in Rule 23(b)(3) is a corollary to the ‘commonality’ requirement
found in Rule 23(a)(2). While the ‘commonality’ requirement simply requires a showing
of common questions, the ‘predominance’ requirement requires a showing that the
common questions of law or fact outweigh individual questions.” Id. The Rezulin Court
stated that “[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 public and to
promote consistent decisions for people with similar claims.” Id. at 72, 585 S.E.2d at 72.
Moreover, the Rezulin Court explained that
[t]he 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 compared to all other issues, or when viewed
by themselves.” 2 Newberg on Class Actions, 4th Ed., § 4:25
at 174.
Id. The Rezulin Court concluded 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-
21
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. The presence of individual issues may pose
management problems for the circuit court, but courts have a
variety of procedural options under Rule 23(c) and (d) to
reduce the burden of 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. As the leading
treatise in this area states, “[c]hallenges based on . . .
causation, or reliance have usually been rejected and will not
bar predominance satisfaction because those issues go to the
right of a class member to recover, in contrast to underlying
common issues of the defendant’s liability.” 2 Newberg on
Class Actions, 4th Ed., § 4.26 at 241. “That class members
may eventually have to make an individual showing of
damages does not preclude class certification.” Smith v. Behr
Process Corp., 113 Wash. App. 306, 323, 54 P.3d 665, 675
(2002) (citations omitted).
Id.The United States Supreme Court has observed West Virginia’s noticeable
departure from looking to federal law for guidance when analyzing what is required under
the Rule 23(b)(3) predominance requirement.
[T]he West Virginia Supreme Court has gone some way toward
resolving the matter before us by declaring its independence
from federal courts’ interpretation of the Federal Rules—and
particularly of Rule 23. In In re W. Va. Rezulin Litigation, 214
W. Va. 52, 585 S.E.2d 52 (2003) (In re Rezulin), the West
Virginia high court considered a plaintiff’s motion to certify a
class[.] . . . The court made a point of complaining about the
parties’ and lower court’s near-exclusive reliance on federal
cases about Federal Rule 23 to decide the certification question.
Such cases, the court cautioned, “‘may be persuasive, but [they
22
are] not binding or controlling.’” Id., at 61, 585 S.E.2d, at 61.
And lest anyone mistake the import of this message, the court
went on: The aim of “this rule is to avoid having our legal
analysis of our Rules ‘amount to nothing more than Pavlovian
responses to federal decisional law.’” Ibid. (emphasis deleted).
...
. . . [T]he West Virginia Supreme Court in In re Rezulin
adopted an all-things-considered, balancing inquiry in
interpreting its Rule 23. Rejecting any “rigid test,” the state
court opined that the predominance requirement “contemplates
a review of many factors.” 214 W. Va., at 72, 585 S.E.2d, at
72. Indeed, the court noted, a “‘single common issue’” in a case
could outweigh “‘numerous . . . individual questions.’” Ibid.That meant, the court further explained (quoting what it termed
the “leading treatise” on the subject), that even objections to
certification “‘based on . . . causation, or reliance’”—which
typically involve showings of individual injury—“‘will not bar
predominance satisfaction.’” Ibid. (quoting 2 A. Conte & H.
Newberg, Newberg on Class Actions § 4.26, p. 241 (4th ed.
2002)).
Smith v. Bayer Corp., 564 U.S. 299, 310-12, 131 S. Ct. 2368, 2377-78, 180 L. Ed. 2d 341(2011). As such, in rejecting any reliance on or guidance from the federal courts’ views
and tests regarding how our state courts are to examine the Rule 23(b)(3) requirements, we
have instead utilized a vague, all things considered test that does not give the circuit courts
any real guidance. While we may not be bound to follow the federal courts’ interpretation
of its Rule 23(b)(3), we nevertheless find the weight of the federal jurisprudence to be
persuasive. 10 Accordingly, we conclude that to the extent Rezulin simply suggests that
10
Recently, this Court adopted and applied federal law in the context of the
Rule 23(a) commonality determination and other aspects of class action matters in State ex
rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W. Va. 54, 62, 829 S.E.2d 54,
62 (2019).
23
there is not much difference between commonality and predominance and that no rigid test
is necessary, it must now be modified.
Given the aforementioned authorities, we now hold that when a class action
certification is being sought pursuant to West Virginia Rule of Civil Procedure 23(b)(3), a
class action may be certified only if the circuit court is satisfied, after a thorough analysis,
that the predominance and superiority prerequisites of Rule 23(b)(3) have been satisfied.
The thorough analysis of the predominance requirement of West Virginia Rule of Civil
Procedure 23(b)(3) includes (1) identifying the parties’ claims and defenses and their
respective elements; (2) determining whether these issues are common questions or
individual questions by analyzing how each party will prove them at trial; and
(3) determining whether the common questions predominate. In addition, circuit courts
should assess predominance with its overarching purpose in mind—namely, ensuring that
a class action would achieve economies of time, effort, and expense, and promote
uniformity of decision as to persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results. This analysis must be placed in the
written record of the case by including it in the circuit court’s order regarding class
certification.
In the case sub judice, Surnaik claims both that the circuit court erred in its
analysis of the Rule 23(b)(3) predominance requirement and that its order “is deficient
because it did not conduct a ‘thorough analysis’ explaining how [Mr. Snider] satisfied the
24
requirements of Rule 23[.]” 11 After carefully examining the circuit court’s order we agree
that it is woefully inadequate.
Most significantly, the circuit’s court’s order fails to conduct a thorough
analysis of the Rule 23(b)(3) predominance requirement. Surnaik repeatedly has
challenged the predominance requirement in this matter by asserting that the proposed class
is inappropriately composed of a significant number of uninjured individuals—
approximately 90% of the class members. Surnaik alleges that because of the large amount
of uninjured class members, “individualized issues of injury and causation will overwhelm
questions common to the class.” Additionally, Surnaik contends that this type of mass
accident matter is not appropriate for class action because “variations in exposure, and
differences in the amount of exposure and the nexus between exposure and injury lead to
different applications of legal rules, including matters of causation, damages, and
affirmative defenses, such as comparative fault and assumption of risk, which are
applicable to each [individual] plaintiff.”
While the circuit court’s order did have slightly more analysis regarding
predominance than the other Rule 23 requirements, it failed to (1) thoroughly identify the
11
While it appears that the focus of Surnaik’s argument is in regards to the
failure to adequately analyze the typicality and ascertainability requirements, Surnaik
nonetheless asserted that the circuit court’s order is inadequate in all respects of the Rule
23 thorough analysis requirement.
25
parties’ claims and defenses and their respective elements; (2) determine whether these
issues are common questions or individual questions by analyzing how each party will
prove them at trial; and (3) determine whether the common questions predominate.
Specifically, the order contained the following predominance analysis:
Plaintiff[] commonly assert[s] that the Defendant was
negligent and recklessly indifferent to the well-being of its
neighbors in failing to maintain its fire protection system, and
that an award of compensatory and punitive damages to
residents, businesses, and government agencies in the area
impacted by noxious and harmful levels of smoke from the
Warehouse Fire is therefore appropriate. The Court finds that
the overarching liability issues predominate over any
individual questions, favoring class treatment consistent with
W. Va. R. Civ. P. 23(b)(3).
The circuit court’s analysis does not come close to rising to the level that is required. There
was very limited, to say the least, discussion of the actual claims and causes of action in
this matter. Mr. Snider asserts various causes of action including negligence, reckless
indifference, nuisance, and trespass. Along with each of these various causes of action are
alleged damages ranging from different types of property damage, personal injuries, and
lost business profits. As stated above, the circuit court’s only discussion in the “Findings
of Fact” section of its order states “Plaintiff[] commonly assert[s] that the Defendant was
negligent and recklessly indifferent to the well-being of its neighbors in failing to maintain
its fire protection system.” As such, the circuit court’s order identifies only the negligence
and reckless, willful, and wanton indifference causes of action. There is absolutely no
identification of the nuisance or trespass causes of action also brought by Mr. Snider. The
circuit court’s order also fails to discuss any of the required essential elements of each of
26
the causes of action, including negligence or reckless indifference. 12 There is no discussion
of whether the essential elements of each cause of action are capable of individualized or
even generalized proof. Finally, the order summarily concludes that the overarching
liability issues predominate over any individual questions without any legal or factual
analysis as to why this is so. 13
12
See EQT Prod. Co. v. Adair, 764 F.3d 347, 367 n.19 (4th Cir. 2014) (“The
district court also failed to consider whether the different elements of the diverse causes of
action the plaintiffs assert may affect the Rule 23(b)(3) analysis. . . . Here, the plaintiffs
assert a diverse array of claims, yet the court failed to consider whether any of the unique
elements of those claims would affect the predominance analysis. This error is clearest
with respect to the district court’s decision to certify the breach of contract claims in [the
cases of] Kiser and Adkins [a part of this consolidated appeal], which it did without
explanation and notwithstanding the magistrate’s recommendation to the contrary. And
neither the magistrate nor the district court addressed the breach of contract claims in
Addison [case of this consolidated appeal]. On remand, the district court should rigorously
analyze each of the plaintiffs’ claims to determine whether any of the distinct elements of
those actions might affect the predominance of common questions.”).
13
We additionally note that the proposed class consists of residents of both
West Virginia and Ohio. The federal courts have found this information to be especially
important in their predominance analysis. See Castano v. Am. Tobacco Co., 84 F.3d 734,
741 (5th Cir. 1996) (“In a multi-state class action, variations in state law may swamp any
common issues and defeat predominance. See Georgine v. Amchem Prods., 83 F.3d 610,
618 (3d Cir. 1996) (decertifying class because legal and factual differences in the plaintiffs’
claims ‘when exponentially magnified by choice of law considerations, eclipse any
common issues in this case’); American Medical Sys., 75 F.3d at 1085 (granting mandamus
in a multi-state products liability action, in part because ‘[t]he district court . . . failed to
consider how the law of negligence differs from jurisdiction to jurisdiction[.]”).
Accordingly, a [] court must consider how variations in state law affect predominance and
superiority. Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C. Cir. 1986) (Ruth Bader
Ginsburg, J.), cert. denied, 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 677 (1987).”). In
the present matter, the circuit court made no mention of this fact and likewise no analysis
as to this issue when considering the predominance and superiority class certification
requirements.
27
Although 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.
Specifically, the order cites to a list of cases to support its finding that a mass accident case
is appropriate for class action treatment. The circuit court, itself, notes that those cases
typically involve “non-personal injury” matters. Then, the circuit court cites to a case in
support of its conclusion that Mr. Snider’s case is appropriate for class certification;
however, it goes on to state that the case it is relying on “certified two of three proposed
subclasses—the ones ‘involving damages to class members’ property’—and only denied
certification for the subclass ‘involving personal injuries.’” Essentially, the circuit court’s
citation to cases without any analysis as to why they specifically apply to the facts of the
present matter “does little more than prove that it is theoretically possible to satisfy the
predominance and superiority requirements of Rule 23(b)(3) in a mass tort or mass accident
class action[.]” Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006).
It then summarily disposed of Surnaik’s argument that 90% of the class is uninjured by
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.” The circuit court once again
failed to examine any of the essential elements of the causes of action and failed to discuss
whether those elements are capable of individualized or even generalized proof. The
circuit court’s sole focus was on property damages, and it neglected to take into account
any potential issues with the personal injury claims. Accordingly, the circuit court failed
28
to thoroughly and appropriately determine whether the common issues predominate over
individualized issues as required by Rule 23(b)(3).
Furthermore, Rule 23(b)(3) also requires a showing “that a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy.” As we previously have explained,
[u]nder the superiority test, a trial court must “compare [ ] the
class action with other potential methods of litigation.”
Cleckley, Davis, & Palmer, Jr., Litigation Handbook on West
Virginia Rules of Civil Procedure § 23(b)(3)[2][b], at 554
(footnote omitted). See also Nolan v. Reliant Equity Investors,
LLC, No. 3:08–CV–62, 2009 WL 2461008, at *4 (N.D. W. Va.
Aug. 10, 2009) (“Superiority requires that a class action be
superior to other methods for the fair and efficient adjudication
of the controversy.” (quotations and citations omitted)); In re
West Virginia Rezulin Litig., 214 W. Va. at 75, 585 S.E.2d at
75 (stating that superiority “requirement focuses upon a
comparison of available alternatives”).
“Factors that have proven relevant in the superiority
determination include the size of the class, anticipated
recovery, fairness, efficiency, complexity of the issues and
social concerns involved in the case.” Cleckley, Davis, &
Palmer, Jr., Litigation Handbook on West Virginia Rules of
Civil Procedure § 23(b)(3)[2][b], at 554 (footnote omitted). In
addition, this Court has observed that consideration must be
given to the purposes of Rule 23, “‘including: conserving time,
effort and expense; providing a forum for small claimants; and
deterring illegal activities.’” In re West Virginia Rezulin Litig.,
214 W. Va. at 76, 585 S.E.2d at 76 (quoting 2 Conte &
Newberg, Newberg on Class Actions § 4:32, at 277-78).
Perrine, 225 W. Va. at 527, 694 S.E.2d at 860. In the instant matter, the circuit court’s
main analysis of the Rule 23(b)(3) superiority requirement is as follows:
29
The class action mechanism is ideally suited for resolving these
matters. Class certification promotes efficiency and
uniformity of judgment, among other reasons, because the
many Class Members will not be forced to separately pursue
claims arising from the same incident, which might lead to
inconsistent verdicts. The Court specifically finds that the
class action mechanism is superior to any available
mechanisms for aggregating many individual claims, including
before the West Virginia Mass Litigation Panel, because 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.
As discussed herein, in the “Conclusions of Law” section of the circuit court’s order, the
court did provide slightly more discussion that was intertwined with predominance.
However, as noted above, this discussion was 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. There is no
substantive analysis as to the other factors that this Court has stated should be considered.
As such, we find that the circuit court failed to make a thorough analysis of the superiority
requirement of Rule 23(b)(3) as well. 14
14
We further note that the circuit court’s order regarding other Rule 23(a)
requirements is also insufficient. For example, the order is woefully inadequate regarding
the Rule 23 adequacy of representation requirement, despite the fact that Surnaik contested
the credibility of the class representative below due to certain alleged racist and political
remarks he made on social media. See Rule 23. Class Actions, 1 Federal Rules of Civil
Procedure, Rules and Commentary Rule 23 (“Rule 23(a)(4) also considers whether the
proposed representative has the interest and the ability to adequately prosecute the action.
. . . Courts may also consider whether the proposed class representative is disqualified
because of issues regarding the person’s credibility or trustworthiness.” (footnotes
omitted)).
30
Furthermore, as noted in the foregoing discussion, a circuit court’s failure to
engage in the requisite thorough analysis of the Rule 23(a) requirements and to make
detailed and specific findings to support the court’s certification determination constitutes
clear error. Accord State ex rel. Mun. Water Works v. Swope, 242 W. Va. 258, 268, 835
S.E.2d 122, 132 (2019); State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot, 242 W. Va. 54,
62, 829 S.E.2d 54, 62 (2019); Chemtall, 216 W. Va. at 454, 607 S.E.2d at 783. Such failure
“is also an abuse of discretion. The circuit court must approach certification decisions in
a conscientious, careful, and methodical fashion.” W. Va. Univ. Hosps., 242 W. Va. at 62,
829 S.E.2d at 62 (internal quotations and citations omitted). We find that the same standard
should logically extend to a court’s failure to conduct a thorough analysis pursuant to Rule
23(b). Accordingly, we hold a circuit court’s failure to conduct a thorough analysis of the
requirements for class certification pursuant to West Virginia Rules of Civil Procedure
23(a) and/or 23(b) amounts to clear error. Because the circuit court failed to conduct a
thorough analysis of the class certification requirements under both Rules 23(a) and 23(b),
we find the court’s ruling certifying the class to be clearly erroneous. Therefore, we grant
as moulded the requested writ of prohibition and vacate the circuit court’s class
certification order. 15
Because we grant the writ as moulded and vacate the circuit court’s order,
15
we need not consider any other grounds raised by Surnaik.
31
IV.
CONCLUSION
For the foregoing reasons, we conclude 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 of the West
Virginia Rules of Civil Procedure were satisfied. Accordingly, Surnaik’s writ of
prohibition is granted as moulded, and the circuit court’s order granting class certification
is vacated.
Writ granted as moulded.
32