SER American Electric Power v. Hon. David W. Nibert, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2016 Term

FILED

February 10, 2016

released at 3:00 p.m.

No. 15-0819 RORY L. PERRY, II CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL.

AMERICAN ELECTRIC POWER CO., INC.;

AMERICAN ELECTRIC POWER SERVICE CORPORATION;

OHIO POWER COMPANY; AND

DOUG WORKMAN,

Petitioners

V.

HONORABLE DAVID W. NIBERT,

JUDGE OF THE CIRCUIT COURT OF MASON COUNTY;

ESTATE OF BOBBY CLARY BY JOY CLARY, ADMINISTRATOR;

ESTATE OF LARRY LAUDERMILT BY HARRIET LAUDERMILT,

ADMINISTRATOR;

ESTATE OF FRED PARKER BY NANCY PARKER, ADMINISTRATOR;

ESTATE OF JAMES STEWART BY SHAWN STEWART, ADMINISTRATOR;

ESTATE OF JOAN WAMSLEY BY JOHN WAMSLEY, ADMINISTRATOR;

ESTATE OF JUDITH WRIGHT BY THOMAS WRIGHT, ADMINISTRATOR;

ROBERT ALLEN; LARRY ANGEL; JOSEPH BALL;

PAUL BRAMMER; ROBERT BRUCE; RONALD CAMPBELL;

ANTHONY CARDILLO; DAVID CARSEY; JAMES CHAPMAN;

RICK CLARY; GARY COOPER; CHARLES EHMAN;

ROBERT FRAZIER; DAVID JONES; RICHARD LAMBE;

TONYA LAVENDER; HARRIETT LAUDERMILT; PAUL MCDANIEL;

TAMMY MULLENS; TRACY MULLENS; JOHN POFF;

DON REES; ELTON RITCHIE; WILBUR ROBINSON;

MICHAEL SHAW; ROGER SHORT; IVA SISSON;

CARLOS STEPP; THERON SWISHER; ROY TAYLOR;

PAUL THOMAS; JOAN WAMSLEY; SHAREN WAMSLEY;

STEVEN WATSON; EDMOND WRIGHT; THOMAS WRIGHT;

TIANA ANGEL, BY TINA HUDSON, MOTHER AND NEXT FRIEND;

TINA HUDSON; JOYCE BARCUS; AUGUSTENE BRAMMER;

KACEY BURRIS; CHERYL CLARY; JANET REES;

DIANA WRIGHT; LARRY ANGEL, II; TERRI BOOTH;

SHAWN CARDILLO; AMY EDWARDS; JESSE EHMAN;

MELISSA HAYES; ALEXIS MULLENS; ELIZABETH PIERCE;

HANNA RAMSBURG; DARRIN REESE; CHRISTOPHER SHAW;

JOHN SISSON; ROBERT SISSON, JR.; KAREN TERRY;

DON WAMSLEY; ROBIN WAMSLEY; JACOB WATSON;

JEREMIAH WATSON; TERRI CARSEY; SUZANNE CHAPMAN;

DIAN MCDANIEL; BRENDA POFF; CHERYL SHAW;

ROBERT SISSON; VICKI TAYLOR; KAREN THOMAS; AND

SHEILA WATSON,

Respondents

Petition for Writ of Prohibition

WRIT DENIED

Submitted: January 13, 2016

Filed: February 10, 2016

Ancil G. Ramey Christopher J. Regan

James W. Turner J. Zachary Zatezalo

Jessica L. Wiley Laura P. Pollard

Steptoe & Johnson PLLC Bordas & Bordas, PLLC

Huntington, West Virginia Wheeling, West Virginia

Attorneys for the Petitioners L. David Duffield

Chad S. Lovejoy

Duffield, Lovejoy, Stemple & Boggs, PLLC

Huntington, West Virginia

Attorneys for the Respondents

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICES BENJAMIN AND LOUGHRY dissent and reserve the right to file separate

opinions.

SYLLABUS BY THE COURT

1. A circuit court’s decision to deny a motion to dismiss based upon forum

non conveniens will not be reversed unless the circuit court has abused its discretion.

2. “Under West Virginia Code § 56-1-1a (Supp. 2010), dismissal of a

claim or action on the basis of forum non conveniens presupposes at least two forums in

which the defendant is amenable to process; the statute furnishes criteria for choice between

them. In the event that the defendant is not amenable to process in any alternate forum,

dismissal of a claim or action under this statute would constitute error.” Syllabus point 8,

Mace v. Mylan Pharmaceuticals, Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011).

3. “In considering ‘whether an alternate forum exists in which the claim

or action may be tried’ pursuant to West Virginia Code § 56-1-1a(a)(1) (Supp. 2010), an

alternate forum is presumed to ‘exist’ where the defendant is amenable to process. Such

presumption may be defeated, however, 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.” Syllabus point 9, Mace v. Mylan Pharmaceuticals, Inc., 227

W. Va. 666, 714 S.E.2d 223 (2011).

i

4. “By using the term ‘shall,’ the Legislature has mandated that courts must

consider the eight factors enumerated in West Virginia Code § 56-1-1a (Supp. 2010), as a

means of determining whether, in the interest of justice and for the convenience of the

parties, a claim or action should be stayed or dismissed on the basis of forum non

conveniens.” Syllabus point 5, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713

S.E.2d 356 (2011).

ii

Davis, Justice:

The petitioners herein, American Electric Power Co., Inc., et al. (collectively,

“AEP”), request this Court to issue a writ of prohibition to prevent the enforcement of an

order entered August 5, 2015, by the Circuit Court of Mason County. By that order, the

circuit court denied AEP’s motion to dismiss based upon forum non conveniens.1 Before this

Court, AEP contends that the circuit court erred by refusing to dismiss the underlying

complaint pursuant to the forum non conveniens statute, W. Va. Code § 56-1-1a (2008)

(Repl. Vol. 2012).2 Upon a review of the parties’ briefs, the record designated for appellate

consideration, and the pertinent authorities, we deny the requested writ of prohibition. In

summary, we find that the circuit court adequately considered and applied the statutory forum

non conveniens factors in refusing AEP’s motion to dismiss on such grounds.

1

The circuit court also issued a second order that was entered on August 5,

2015, denying AEP’s motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules

of Civil Procedure. AEP does not seek relief from this second order in the instant

proceeding.

2

For the relevant text of W. Va. Code § 56-1-1a (2008) (Repl. Vol. 2012), see

Section III, infra.

1

I.

FACTUAL AND PROCEDURAL HISTORY

The instant proceeding originated when the respondents herein, the estate of

Bobby Clary, by his administrator Joy Clary, et al. (collectively, “the Plaintiffs”), filed the

underlying action against AEP in the Circuit Court of Mason County on August 9, 2014. In

their complaint, the Plaintiffs sought damages for injuries they, or their family members,

have incurred as a result of their exposure to coal combustion waste from the General James

M. Gavin Power Plant, the General James M. Gavin Landfill, and associated facilities

(collectively, “Gavin Landfill”) in Gallipolis, Ohio. The Plaintiffs allege that they, or the

parties they represent, have developed numerous different types of cancer and/or other health

problems from their exposure to the coal waste. Specifically, the Plaintiffs claim that such

coal waste, or fly ash, contains a variety of toxic metals, including arsenic, mercury,

chromium, lead, uranium, cadmium, thallium, and molybdenum. Of the seventy-seven

named plaintiffs, approximately nine plaintiffs are West Virginia residents; the remaining

plaintiffs are primarily residents of Ohio and Kentucky, while a few reside in still other

states.

The Plaintiffs allege that AEP owns and/or operates3 the Gavin Landfill and

3

AEP disputes the Plaintiffs’ assertions as to its control over the Gavin

Landfill.

2

that its employee and named defendant below, Doug Workman (“Mr. Workman”),

specifically directed the employee plaintiffs to work in and around the coal waste and fly ash.

The Plaintiffs further allege that Mr. Workman failed to address concerns raised by the

employee plaintiffs questioning the safety of coal waste exposure, that they were not

provided with protective gear to minimize the effects of such exposure, and that AEP and

Mr. Workman intentionally concealed the hazardous effects of the coal waste and exposure

thereto. While the Gavin Landfill is located in Ohio, AEP conducts significant business in

West Virginia, and Mr. Workman is a West Virginia resident.

In response to the Plaintiffs’ complaint, AEP filed a motion to dismiss based

upon forum non conveniens. To support its motion, AEP contended that because most of the

Plaintiffs are not residents of West Virginia and because the Plaintiffs’ cause of action, i.e.,

exposure to coal waste and resultant injuries, accrued in Ohio, and not in West Virginia,

dismissal of the case pursuant to the forum non conveniens statute, W. Va. Code § 56-1-1a,

was proper. The Plaintiffs replied that any inconvenience resulting from pursuing their

claims in West Virginia, rather than in Ohio, was insignificant insofar as the geographical

distance between the West Virginia and Ohio courthouses is less than ten miles, the majority

of the defendants are amenable to suit in West Virginia, the Plaintiffs have all agreed to

litigate their claims in West Virginia, and the vast majority of the case’s witnesses are the

Plaintiffs, themselves, who have agreed to make themselves available for depositions and

3

courtroom testimony in West Virginia.

The circuit court held a hearing on AEP’s motion, and, by order entered August

5, 2015, refused AEP’s motion to dismiss based upon forum non conveniens. Applying each

of the statutory factors, and rendering findings of fact and conclusions of law as to each,4 the

circuit court determined that West Virginia is not such an inconvenient forum so as to require

trial of the case elsewhere. The court further expressed concern that dismissal of the case

would deprive West Virginia residents of their constitutional right to pursue their claims

against the defendants in a West Virginia and simultaneously treat nonresidents differently

by depriving nonresidents of rights afforded to West Virginia residents.5 Finally, the court

noted that, to the extent that Ohio law might govern the parties’ dispute, the court regularly

applies Ohio law in cases over which it presides given its proximity to the Ohio border.

From this adverse ruling, AEP seeks extraordinary relief from this Court to prohibit the

4

See Section III, infra, for further treatment of the circuit court’s order

analyzing the statutory forum non conveniens factors.

5

For this point, the circuit court relied upon this Court’s prior comments in

Morris v. Crown Equipment Corp., 219 W. Va. 347, 354, 633 S.E.2d 292, 299 (2006),

observing that “there is a strong constitutional disfavoring of the categorical exclusion of

nonresident plaintiffs from a state’s courts under venue statutes when a state resident would

be permitted to bring a similar suit.” We remind the circuit court, however, that

determination of a motion seeking dismissal upon forum non conveniens grounds is governed

by statute, rather than by our cases decided before the promulgation of said statute. See State

ex rel. Ford Motor Co. v. Nibert, 235 W. Va. 235, 240, 773 S.E.2d 1, 6 (2015) (cautioning

circuit court to base forum non conveniens ruling upon W. Va. Code § 56-1-1a rather than

cases predating statute’s adoption).

4

circuit court from enforcing its August 5, 2015, order.

II.

STANDARD FOR ISSUANCE OF WRIT

In this proceeding, AEP requests this Court to issue a writ of prohibition to

prevent the circuit court from enforcing its order which denied AEP’s motion to dismiss

based upon forum non conveniens. As an extraordinary remedy, this Court reserves the

granting of such relief to “really extraordinary causes.” State ex rel. Suriano v. Gaughan,

198 W. Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted).

Accordingly, “[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.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver,

160 W. Va. 314, 233 S.E. 2d 425 (1977). Moreover, “this Court will use prohibition . . . to

correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory,

constitutional, or common law mandate which may be resolved independently of any

disputed facts and only in cases where there is a high probability that the trial will be

completely reversed if the error is not corrected in advance.” Syl. pt. 1, in part, Hinkle v.

Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by statute on other grounds as

stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va. 564, 759 S.E.2d 795 (2014).

5

Furthermore, we previously have recognized that cases involving venue

determinations entail a high probability of reversal if errors are not corrected at the outset

and, thus, are appropriate for extraordinary relief. See State ex rel. Huffman v. Stephens, 206

W. Va. 501, 503, 526 S.E.2d 23, 25 (1999) (“In 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.” (internal quotations and citations omitted)).

When deciding whether the writ of prohibition should issue in a given case, we

have held as follows:

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.

6

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

Furthermore, we have previously held that whether a case should be dismissed

based upon forum non conveniens grounds is best left to the discretion of the presiding

tribunal because such a determination is driven by the facts of a particular case. Thus, “[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. v.

Aetna Cas. & Sur. Co. of America, 194 W. Va. 186, 460 S.E.2d 1 (1994). We also find the

converse to be true and therefore additionally hold that a circuit court’s decision to deny a

motion to dismiss based upon forum non conveniens will not be reversed unless the circuit

court has abused its discretion. See Cannelton, 194 W. Va. at 191, 460 S.E.2d at 6 (“‘The

forum non conveniens determination is committed to the sound discretion of the trial court.

It may be reversed only when there has been a clear abuse of discretion[.]’” (quoting Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266, 70 L. Ed. 2d 419 (1981)

(additional citations omitted))).

Finally, to the extent that the doctrine of forum non conveniens has been

codified by statute, our consideration of the case sub judice also is guided by the standard of

review applicable to cases involving statutory interpretation: “Interpreting a statute or an

administrative rule or regulation presents a purely legal question subject to de novo review.”

7

Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. 573, 466

S.E.2d 424 (1995). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459

S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question

of law or involving an interpretation of a statute, we apply a de novo standard of review.”).

Mindful of these standards, we proceed to consider the parties’ arguments.

III.

DISCUSSION

The sole issue presented for our consideration and resolution herein is whether

the circuit court should have dismissed the Plaintiffs’ underlying lawsuit based upon forum

non conveniens. The Legislature has codified the common law doctrine of forum non

conveniens at W. Va. Code § 56-1-1a (2008) (Repl. Vol. 2012), which provides, in relevant

part:

(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

8

court shall consider:

(1) Whether an alternate forum exists in which the claim

or action may be tried;

(2) Whether maintenance of the claim or action in the

courts of this state would work a substantial injustice to the

moving party;

(3) Whether the alternate forum, as a result of the

submission of the parties or otherwise, can exercise jurisdiction

over all the defendants properly joined to the plaintiff’s claim;

(4) The state in which the plaintiff(s) reside;

(5) The state in which the cause of action accrued;

(6) Whether the balance of the private interests of the

parties and the public interest of the state predominate in favor

of the claim or action being brought in an alternate forum, which

shall include consideration of the extent to which an injury or

death resulted from acts or omissions that occurred in this state.

Factors relevant to the private interests of the parties include,

but are not limited to, the relative ease of access to sources of

proof; availability of compulsory process for attendance of

unwilling witnesses; the cost of obtaining attendance of willing

witnesses; possibility of a view of the premises, if a view would

be appropriate to the action; and all other practical problems that

make trial of a case easy, expeditious and inexpensive. Factors

relevant to the public interest of the state include, but are not

limited to, the administrative difficulties flowing from court

congestion; the interest in having localized controversies

decided within the state; the avoidance of unnecessary problems

in conflict of laws, or in the application of foreign law; and the

unfairness of burdening citizens in an unrelated forum with jury

duty;

(7) Whether not granting the stay or dismissal would

result in unreasonable duplication or proliferation of litigation;

and

9

(8) Whether the alternate forum provides a remedy.

....

(c) If the statute of limitations in the alternative forum

expires while the claim is pending in a court of this state, the

court shall grant a dismissal under this section only if each

defendant waives the right to assert a statute of limitation

defense in the alternative forum. The court may further

condition a dismissal under this section to allow for the

reinstatement of the same cause of action in the same forum in

the event a suit on the same cause of action or on any cause of

action arising out of the same transaction or occurrence is

commenced in an appropriate alternative forum within sixty

days after the dismissal under this section and such alternative

forum declines jurisdiction.

....

(e) A court that grants a motion to stay or dismiss an

action pursuant to this section shall set forth specific findings of

fact and conclusions of law.

We previously have interpreted the statutory codification of the doctrine of

forum non conveniens as follows:

Under West Virginia Code § 56-1-1a (Supp. 2010),

dismissal of a claim or action on the basis of forum non

conveniens presupposes at least two forums in which the

defendant is amenable to process; the statute furnishes criteria

for choice between them. In the event that the defendant is not

amenable to process in any alternate forum, dismissal of a claim

or action under this statute would constitute error.

Syl. pt. 8, Mace v. Mylan Pharms., Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011). Thus,

[i]n considering “whether an alternate forum exists in

10

which the claim or action may be tried” pursuant to West

Virginia Code § 56-1-1a(a)(1) (Supp. 2010), an alternate forum

is presumed to “exist” where the defendant is amenable to

process. Such presumption may be defeated, however, 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, Mace, 227 W. Va. 666, 714 S.E.2d 223.

We further have recognized that,

[b]y using the term “shall,” the Legislature has mandated

that courts must consider the eight factors enumerated in West

Virginia Code § 56-1-1a (Supp. 2010), as a means of

determining whether, in the interest of justice and for the

convenience of the parties, a claim or action should be stayed or

dismissed on the basis of forum non conveniens.

Syl. pt. 5, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 (2011). See

also Syl. pt. 6, State ex rel. Mylan, Inc. v. Zakaib, id. (“In all decisions on motions made

pursuant to West Virginia Code § 56-1-1a (Supp. 2010), 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.”). Finally, as we noted in the preceding section, a circuit

court’s ruling on a motion to dismiss based upon forum non conveniens is reviewed for an

abuse of discretion. See Cannelton, 194 W. Va. at 191, 460 S.E.2d at 6 (observing that

court’s decision regarding forum non conveniens “‘deserves substantial deference’” (quoting

Piper Aircraft, 454 U.S. at 257, 102 S. Ct. at 266, 70 L. Ed. 2d 419) (additional citations

11

omitted)).

In rendering its ruling, the circuit court addressed each of the eight forum non

conveniens factors enumerated in W. Va. Code § 56-1-1a(a)(1-8) as it was required to do.

See Syl. pt. 5, Mylan, 227 W. Va. 641, 713 S.E.2d 356. AEP, however, argues that the circuit

court erred in refusing to find that forum non conveniens applies to require dismissal of the

instant proceeding. In reviewing the circuit court’s rulings, and the parties’ arguments with

respect thereto, we will retain the format employed by the circuit court so as to prevent

duplicative analyses of the eight statutory factors.

A. Factors 1, 3, and 8

The circuit court first considered factors 1, 3, and 8, specifically, (1) the

existence of an alternate forum, W. Va. Code § 56-1-1a(a)(1); (3) whether the alternate

forum can exercise jurisdiction over the parties, W. Va. Code § 56-1-1a(a)(3); and (8)

whether the alternate forum provides a remedy, W. Va. Code § 56-1-1a(a)(8). In its August

5, 2015, order, the circuit court concluded that,

[w]ith respect to Factors one, three and eight, regarding an

alternative forum, while the Court recognizes that Ohio exists as

an alternative forum, practically speaking, alternative forums

almost always exist, particularly in cases that involve border

States, and the Court is not persuaded that this is substantial

enough for the Defendants to overcome their heavy burden in

seeking dismissal of the Plaintiffs’ claims. The Court also notes

that while, on the one hand, the Defendants allege that Ohio

12

provides an alternative forum for this lawsuit, the Defendants

also allege that the Plaintiffs’ claims require[] dismissal under

the substantive law of that same Ohio forum, thereby calling

into question whether Ohio actually provides a true remedy for

the Plaintiffs’ claims.

AEP argues that, regarding factor one, even though the Plaintiffs conceded that

an alternate forum exists, the circuit court disregarded the same by opining that an alternate

forum “almost always exists.” Further AEP complains that the circuit court only mentions

and does not substantively address factor three regarding Ohio’s ability to exercise

jurisdiction over all of the parties named as defendants below. Finally, AEP contends, under

factor eight, that if remedies exist for the Plaintiffs’ claims, such remedies are available in

Ohio.

The Plaintiffs respond that the circuit court correctly ruled under factor one that

Ohio is not a suitable alternative forum, particularly where AEP contended, below, that if the

Plaintiffs’ claims were brought in Ohio, they would require dismissal on substantive grounds.

As to factor three, the Plaintiffs assert that because AEP and the other defendants are

licensed to and do transact substantial business in West Virginia, and derive substantial

income therefrom, it is not unjust to sue them in West Virginia. Finally, regarding factor

eight, the Plaintiffs contend that if there is a question as to the viability of their claims under

Ohio law, they are not guaranteed that that forum will provide them a remedy. Thus, they

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argue, the circuit court correctly rejected Ohio as an alternative forum.

We begin our consideration of these first statutory factors by noting that the

forum non conveniens statute specifically directs 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.” W. Va. Code § 56-1-1a(a).

In the instant proceeding, we note that certain Plaintiffs are, in fact, West Virginia residents,

while most Plaintiffs are not residents of West Virginia. Moreover, it is undisputed that the

Plaintiffs’ causes of action arose in Ohio, where they were exposed to coal dust waste, not

in West Virginia. Thus, while entitled to deference, the deference accorded to the Plaintiffs’

choice of forum in West Virginia is necessarily diminished by these statutory considerations.

While it appears that an alternate forum exists insofar as the Plaintiffs may

bring their suit in the State of Ohio, and that the State of Ohio can exercise jurisdiction over

the Plaintiffs, the remedies available to the Plaintiffs in Ohio would be diminished if certain

of their claims are not substantively viable in that forum. Although an unfavorable change

in law does not automatically foreclose the availability of another forum, where “the remedy

provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no

remedy at all,” Syl. pt. 8, Mace, 227 W. Va. 666, 714 S.E.2d 223, the “alternative” forum

ceases to exist for purposes of a forum non conveniens analysis. Insofar as AEP has not

14

borne its burden of establishing that Ohio’s substantive law would entertain the Plaintiffs’

claims such that their claims and resultant remedies against AEP would not be substantially

diminished, we conclude that the circuit court correctly determined that factors 1, 3, and 8

weigh in favor of retaining jurisdiction of this case in West Virginia.

B. Factor 2

The circuit court next considered factor 2: “[w]hether maintenance of the claim

or action in the courts of this state would work a substantial injustice to the moving party.”

W. Va. Code § 56-1-1a(a)(2). As to this factor, the circuit court ruled that,

[c]onsidering Factor two, the Court finds no substantial

injustice to the Defendants by maintaining this lawsuit in the

Plaintiffs’ chosen forum. The Defendants neither dispute that

Defendant, Doug Workman, is a West Virginia resident, nor that

the corporate Defendants are licensed to transact business in

West Virginia, nor that the Defendants regularly transact

business in West Virginia, through their ownership and/or

operation of coal-fired power plants in West Virginia, and

derive substantial revenue from their West Virginia business.

See W. Va. Code § 56-3-33(a)(l) [(2008) (Repl. Vol. 2012)].

AEP contends the circuit court erroneously relied upon the general venue

statute, W. Va. Code § 56-1-1 (2007) (Repl. Vol. 2012), and improperly focused upon the

amenability of AEP and the other defendants to personal jurisdiction in West Virginia.

Rather, AEP suggests that the fact that Ohio substantive law governs the Plaintiffs’ claims,

and that their claims may include issues of first impression, render Ohio a more appropriate

15

forum.

The Plaintiffs reply that maintenance of their claims in West Virginia would

not constitute a “substantial injustice” to AEP or the remaining defendants insofar as they are

either West Virginia residents or transact substantial business in this State. Moreover, the

Plaintiffs contend that AEP has failed to demonstrate the substantial injustice it would suffer

by maintenance of the Plaintiffs’ lawsuit in West Virginia so as to defeat their choice of

forum.

We agree with the circuit court’s determination that consideration of this

statutory factor militates in favor of West Virginia’s retention of jurisdiction of this case.

Unlike many of the forum non conveniens cases this Court has considered in recent years, the

vast majority of the parties moving for dismissal in the case sub judice have direct ties to the

State of West Virginia: most of the corporate defendants are incorporated and transact

business in West Virginia, and Mr. Workman resides in this State. Moreover, the site of the

alleged exposure is virtually equidistant from the two county courthouses at issue herein, and

is actually closer to the West Virginia tribunal: the Gavin Landfill is approximately ten miles

from the Mason County, West Virginia, courthouse, while the distance from the Gavin

Landfill to the Gallia County, Ohio, courthouse is approximately eleven miles. Finally, with

respect to AEP’s choice of law complaint, that issue is more appropriately addressed in the

16

context of factor 6 insofar as W. Va. Code § 56-1-1a(a)(6) specifically references “the

application of foreign law” in its enumeration of public policy factors to consider. Thus, we

concur with the circuit court’s assessment that factor 2 weighs in favor of maintaining

jurisdiction of the Plaintiffs’ claims in West Virginia.

C. Factors 4 and 5

The third grouping of statutory forum non conveniens factors that the circuit

court considered includes factor 4, the plaintiffs’ state of residence, W. Va. Code § 56-1­

1a(a)(4), and factor 5, the state in which the cause of action accrued, W. Va. Code § 56-1­

1a(a)(5). With respect to these factors, the circuit court found that

factors four and five essentially yield no practical advantage to

either side. While it is undisputed that the cause of action arose

in Ohio, it is similarly undisputed that this lawsuit involves West

Virginia resident-Plaintiffs and a West Virginia-resident

Defendant.

AEP argues that because only nine of the seventy-seven Plaintiffs are residents

of West Virginia, Ohio is the more appropriate forum in this case. Additionally, AEP

contends that the circuit court erroneously focused upon the fact that a West Virginia resident

is named as a defendant when the operative inquiry is the residency of the plaintiff(s).

Furthermore, AEP asserts that because the Plaintiffs’ cause of action arose in Ohio, Ohio is

the more appropriate forum and that the circuit court erred by discounting this factor.

17

The Plaintiffs respond that the circuit court correctly found that neither of these

factors substantially contributed to its determination in this case. Rather, because the statute

merely requires the numerous factors to be considered but does not afford any particular

factor more weight than another, and because several West Virginia residents are named as

parties to this case, the Plaintiffs assert that the circuit court properly determined that these

factors were not, in and of themselves, determinative of the appropriate forum in this case.

As to factor 4, we agree with the circuit court’s assessment that consideration

of this criterion affords no practical advantage to either side insofar as the Plaintiffs in this

case reside both in West Virginia and in other states. However, we find that the circuit court

abused its discretion in determining that factor 5 did not afford a practical advantage to the

movants herein because it erroneously gave greater weight to the residence of the defendants,

which is not included within the factor 5 criterion, rather than to the place where the cause

of action accrued, which is the entirety of the factor 5 consideration. Because the Plaintiffs’

causes of action accrued in the State of Ohio, and not in West Virginia, we find that

consideration of factor 5 weighs in favor of forum non conveniens dismissal and maintenance

of such claims in the State of Ohio’s tribunals.

18

D. Factor 6

Factor 6, set forth in W. Va. Code § 56-1-1a(a)(6), requires a balancing of the

“private interests of the parties and the public interest of the state” in determining whether

to grant or deny forum non conveniens relief. We will consider each of these tests in turn.

1. Parties’ private interests. W. Va. Code § 56-1-1a(a)(6) describes the

factor 6 balancing test and enumerates the private interests to be considered as follows:

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.

As to the private interest elements, the circuit court ruled that,

[w]ith respect to Factor six, the Court finds that the

private factors preponderate in favor of retaining jurisdiction in

the Plaintiffs’ chosen forum. . . .

The Court finds that access to sources of proof does not

predominate in the Defendants’ favor, and that the Defendants

have failed to offer anything more than conclusory allegations

19

on this factor. As the Defendants point out, the majority of

witnesses live in close proximity to the Gavin Landfill, which is

in close proximity to Mason County and this Court. The Court

is convinced that the vast majority of necessary witness

testimony and document collection can be as readily and

economically accomplished in West Virginia, as it could in

Ohio, using the established methods provided by the West

Virginia’s Rules of Civil Procedure. Certainly counsel for all

the parties take out-of-state depositions and obtain out-of-state

documents on a routine basis. Each state has well-established

and similar subpoena procedures that can be employed, if

necessary, to procure and compel out-of-state witness

appearances, if necessary, and gather evidence. The

Defendants, as parties, cannot complain about access to their

own property, documents or witnesses, when they are required

to permit the Plaintiffs’ [sic] access to the same under West

Virginia’s Civil Rules. Similarly, the vast majority of the

witnesses the Defendants will seek to discover are the actual

Plaintiffs, who are similarly required to make themselves, and

their relevant medical records, available to the Defendants. It is

also clear from the record that neither party’s experts will suffer

any prejudice by testifying in West Virginia versus Ohio.6

With respect to the Defendants’ argument regarding legal

expenses, the Defendants fail to identify any additional legal

expenses that would be incurred by litigating this case in West

Virginia. Again, the Defendants offer only a conclusory

statement that the “cost of obtaining the attendance of willing

witnesses is higher than it would be if the cases were being

litigated in Ohio,” but they offer no explanation as to how or to

what extent the litigation costs would be higher in this forum.

Abbott makes clear that a defendant seeking dismissal must

provide a detailed showing of the additional expenses incurred

by litigating in West Virginia, and the expenses must be

6

The Defendants did not raise any arguments regarding the enforceability of

any judgment entered by this Court. However, the Court finds no compelling reason to

believe that any judgment entered against the Defendants in this forum would not be

enforceable as to the Defendants named in the Plaintiffs’ lawsuit.

20

substantial. The Defendants have failed to provide such a

showing here, and the Court finds their argument on this point

to be unpersuasive, particularly given the close geographic

proximity between Mason County, West Virginia and the Gavin

Landfill, near which the Defendants admit that most of the

witnesses reside.

(Footnote in original).

AEP contends that a consideration of both the private and the public factors

predominate in favor of Ohio as the preferred forum to hear the Plaintiffs’ case. With regard

to the private factors, AEP argues that the alleged act or omission complained of occurred

in Ohio; many of the non-party witnesses reside in Ohio and will not be subject to

compulsory process in West Virginia; it will be more costly for Ohio witnesses to attend trial

in West Virginia; and it is possible that a West Virginia jury will have to be transported to

Ohio to view the site of the alleged injury, i.e., the Gavin Landfill.

The Plaintiffs reply that the circuit court correctly found maintenance of their

suit in West Virginia to be proper. With respect to the private factors, the Plaintiffs contend

that AEP has provided only conclusory allegations that Ohio is the more appropriate forum

under this analysis. Rather, the Plaintiffs assert that most of the witnesses in this case are

parties to this action; most of the tangible evidence involved in this case is in the possession

of the parties; and AEP and/or the other defendants own or operate the Gavin Landfill and,

thus, can provide access to the premises should a jury need to inspect them.

21

Reviewing the private interests of the parties as required by the first portion of

W. Va. Code § 56-1-1a(a)(6), we conclude that the circuit court did not abuse its discretion

in finding that West Virginia is the more appropriate forum under this test. Sources of proof

of the Plaintiffs’ injuries rest predominantly in the hands of the parties, as medical records

of the Plaintiffs or maintenance records of the defendants. The vast majority of the parties

in this case, however, either have submitted voluntarily to the jurisdiction of this State or are

subject to West Virginia’s jurisdiction by virtue of their residency or business status in this

State. Moreover, to the extent evidence resides in Ohio, or must be viewed in Ohio, as we

noted in Section III.B., supra, the difference in geographical distance between the West

Virginia and Ohio tribunals is negligible, and actually predominates in favor of West

Virginia. Moreover, most of the witnesses in this case will be the parties, themselves, who,

as noted, have, in the main, agreed to submit to jurisdiction in West Virginia. With the

exception of the sole Ohio corporate defendant, the private interests of the parties weigh

heavily in favor of maintenance of the Plaintiffs’ claims in West Virginia.

2. State’s public interest. W. Va. Code § 56-1-1a(a)(6) lists the factors to be

considered in the public interest test as follows:

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

22

duty[.]

Considering the public interest elements, the circuit court ruled that

[t]he Court similarly finds that the public factors also

weigh in favor of retaining jurisdiction in the Plaintiffs’ chosen

forum. The Court finds the Defendants’ argument that this

Court is too congested to preside over this action to be

unpersuasive. The statistics produced by the Defendants fail to

demonstrate any significant, compelling difference between the

number of Court filings in Mason County and Gallia County or

raise any particular concern that this Court is incapable of timely

or properly adjudicating this lawsuit. The Court is in the best

position to determine the manageability of its docket and finds

that it is more than capable of handling this matter.

The Court is not persuaded by the Defendants’ argument

that the citizens of Mason County, West Virginia have an

insufficient interest in deciding this controversy. As the

Plaintiffs have pointed out, exposure to coal combustion waste

is an issue that touches citizens on both sides of the Ohio River,

particularly those in Mason County, West Virginia, who work

and/or live in the shadow of four (4) of the Defendants’

coal-fired power plants. The Mason County Courthouse sits less

than 10 driving miles from the Gavin Landfill, which is closer

than the Defendants’ Phillip Sporn or Mountaineer coal-fired

power plants that are located in Mason County, West Virginia,

and AEP groups their plants on both sides of the Ohio River into

distinct regions, such that Defendants’ Region 1 includes the

Gavin plant, as well as the Mountaineer plant and other West

Virginia power plants. Finally, the Court is persuaded that

Mason County citizens have a sufficient interest in deciding an

action brought by their fellow Mason County resident, and other

West Virginia residents, against a Mason County Defendant

alleged to have materially misled workers regarding the

hazardous nature of the coal combustion waste to which they

were being exposed.

The Court finds the Defendants’ argument that they will

be substantially prejudiced in West Virginia by the lack of an

23

intermediate appellate Court to be unpersuasive, because

transfer to Ohio is arguably substantially prejudicial to the

Plaintiffs for that very same reason.

Finally, the court observed that,

[w]ith respect to choice of law, should Ohio law control on any

issues in this litigation, the Court is not especially daunted by its

application. As a Court that essentially sits on the border of

Ohio and West Virginia, this Court is regularly called upon to,

and does, apply Ohio law in cases litigated before this Court.

Regarding the public factors, AEP asserts that the Mason County Circuit Court

is more congested than that of the Gallia County court that would hear the Plaintiffs’ case;

all of the Plaintiffs’ claims arise from alleged exposure to coal waste in Ohio, not because

AEP and the remaining defendants operate facilities in West Virginia or near its border; the

novelty of the Plaintiffs’ claims and the fact that the case likely will involve certified

questions to the Ohio Supreme Court predominate in favor of Ohio being the preferred

forum; and West Virginia jurors should not be called upon to hear a case that arose in Ohio,

is governed by Ohio law, and has only nine West Virginia resident plaintiffs. Considering

all of these factors, AEP argues that Ohio is the more appropriate forum to hear the

Plaintiffs’ case.

With respect to the public factors, the Plaintiffs contend that they also weigh

in favor of Mason County as the appropriate forum. In this vein, the Plaintiffs note that the

24

Mason County circuit judge is in the best position to determine the congestion of his docket,

and he deemed it not to be too crowded to entertain this suit; moreover, the circuit court

observed that, because of its border location, it is familiar with and regularly applies the law

of the State of Ohio to cases over which it presides. Finally, the Plaintiffs suggest that the

prospective jurors in West Virginia have an interest in determining this case because they are

individuals who live in the shadow of the subject power plant, and similar power plants;

regularly experience the air pollution referenced in the case; and likely work at or know

someone who works at one of the defendants’ power facilities. Accordingly, the Plaintiffs

contend that the circuit court properly found West Virginia to be the appropriate forum when

weighing the private and public interest factors.

As with the private interests analysis, we conclude that the consideration of this

State’s public interest also weighs in favor of retention of the Plaintiffs’ claims in West

Virginia. We agree with the circuit court that it is in the best position to determine the weight

of its docket and to assess whether it would be overburdened by maintenance of this suit in

Mason County, West Virginia.7 Moreover, to the extent that the corporate defendants operate

coal-fired power plants both in Gallia County, Ohio, and Mason County, West Virginia, and

7

Moreover, to the extent that hearing a case of this magnitude might become

too burdensome for the presiding West Virginia tribunal, referral of the matter to this State’s

Mass Litigation Panel would ameliorate this concern. For further discussion of the Mass

Litigation Panel, see Section III.E., infra.

25

the coal waste generated by such power plants has adversely affected the residents of Mason

County, West Virginia, these citizens have an interest in deciding the instant controversy.

Furthermore, as we recognized in the case of State ex rel. Khoury v. Cuomo,

No. 15-0852, ___ W. Va. ___, ___ S.E.2d ___ (W. Va. Feb. __, 2016), when defendants seek

the benefits of this State through licensure, a corresponding public interest in ensuring that

they comply with their licensure requirements is created. By the same token, to the extent

that the corporate defendants herein are incorporated under the laws of this State or regularly

transact business within our borders, West Virginia’s citizens have a tremendous public

interest in monitoring and regulating their behavior to ensure it complies with the protections

they have been afforded by this State. Finally, that a choice of law analysis might require the

application of Ohio substantive law to the instant controversy is of no moment. In short, “the

mere fact that the court is called upon to determine and apply foreign law does not present

a legal problem of the sort which would justify the dismissal of a case otherwise properly

before the court.” Hoffman v. Goberman, 420 F.2d 423, 427 (3d Cir. 1970) (footnote

omitted). Therefore, we conclude that consideration of both the private interests and public

interest tests of factor 6 weigh in favor of West Virginia’s retention of jurisdiction over this

case.

26

E. Factor 7

The final statutory factor considered by the circuit court is “[w]hether not

granting the stay or dismissal would result in unreasonable duplication or proliferation of

litigation[.]” W. Va. Code § 56-1-1a(a)(7). In this regard, the circuit court ruled that,

[w]ith respect to the Defendants’ contention that

dismissal would not result in unreasonable duplication or

proliferation of litigation, the Court disagrees. As previously set

forth, W. Va. Code § 56-1-1 makes clear that dismissal of the

West Virginia Plaintiffs’ claims is prohibited. As such,

dismissal of the Ohio Plaintiffs’ claims would necessarily force

the filing of the same lawsuit in another forum, setting the stage

for massive duplication of effort and costs for the parties and

courts alike, as well as the strong possibility of inconsistent

rulings and outcomes. The Court finds that this factor also

preponderates in favor of retaining jurisdiction over this matter

in the Plaintiffs’ chosen forum.

AEP argues that the circuit court improperly based its analysis of this issue on

the general venue statute, W. Va. Code § 56-1-1, rather than the forum non conveniens

statute, W. Va. Code § 56-1-1a, which governs the resolution of this case. Thus, AEP

argues, whether the West Virginia plaintiffs can maintain their suit in West Virginia is not

the determinative issue; rather, the court should have considered whether West Virginia is

an inconvenient forum under W. Va. Code § 56-1-1a.

The Plaintiffs respond that the circuit court correctly ruled that it cannot

dismiss the West Virginia plaintiffs’ claims. As such, two different proceedings would be

27

required if the circuit court granted AEP’s forum non conveniens motion: one in West

Virginia, brought by the plaintiffs who are West Virginia residents, and one in Ohio, brought

by the remaining plaintiffs. These two, different proceedings would then proceed even

thought they both arose from the same coal waste exposure, at the same location, and involve

the same evidence and witnesses. The Plaintiffs contend that this is precisely the type of

duplicative litigation that W. Va. Code § 56-1-1a seeks to prevent and that the maintenance

of such a bifurcated proceeding could lead to inconsistent rulings and outcomes, as well as

the assertion of numerous claims of res judicata and collateral estoppel in the two

jurisdictions. Thus, the Plaintiffs argue that West Virginia is the more appropriate forum.

Upon consideration of the seventh factor of W. Va. Code § 56-1-1a(a), we

agree with the circuit court’s ultimate conclusion that dismissal of this action on forum non

conveniens grounds would undoubtedly result in duplicative litigation in multiple

jurisdictions. As noted previously, W. Va. Code § 56-1-1a(a) requires that “the plaintiff’s

choice of a forum is entitled to great deference,” which choice is diminished only where “the

plaintiff is a nonresident and the cause of action did not arise in this state.” For several of

the Plaintiffs in the case sub judice, their West Virginia residency entitles their chosen forum

to substantial deference. If the Plaintiffs’ case is bifurcated, and the resident Plaintiffs

maintain their claims in West Virginia while the remaining, nonresident Plaintiffs are

required to bring their claims in Ohio, it goes without saying that duplicative discovery will

28

be conducted and analogous legal arguments will be made, with no guarantee that the two

different tribunals will reach the same, or even similar, rulings. The potential for such

inconsistent decisions undercuts the very notions of justice for the parties and judicial

economy for the presiding tribunals.

Moreover, to the extent that the litigation may proliferate, due to the filing of

additional lawsuits alleging the same injuries resulting from exposure to coal waste, joinder

of additional plaintiffs, the complexity of the legal issues, or simply the intricacies of

discovery involving so many parties, West Virginia has in place a mechanism to handle cases

of this nature and magnitude: the Mass Litigation Panel. Although we recognize that,

generally, to constitute “mass litigation” there first must be a minimum of two or more civil

actions to consider such a transfer,8 we have recognized that, sometimes, a singular case may

qualify for mass litigation treatment. In University Commons Riverside Home Owners

Association, Inc. v. University Commons Morgantown, LLC, 230 W. Va. 589, 741 S.E.2d 613

(2013), we observed that

our Mass Litigation Panel was created to deal with cases

involving common questions of law or fact where large numbers

of individuals have been potentially harmed, physically or

economically. In re Tobacco Litigation, 218 W. Va. 301, 311,

624 S.E.2d 738, 748 [(2005)] (Starcher, J., concurring); W. Va.

8

See W. Va. Tr. Ct. R. 26.04(a) (defining “mass litigation” as “[t]wo (2) or

more civil actions pending in one or more circuit courts” that meet additional, enumerated

criteria).

29

Tr. Ct. R. 26.04. Therefore, because there is no mechanism in

the Act to deal with this type of case, and because we do have

a Mass Litigation Panel that was created to deal with cases

involving common questions of law and fact, we are compelled

to exercise our inherent authority pursuant to the Constitution of

West Virginia and deem this matter suitable for resolution under

Rule 26. As we have explained, “‘General supervisory control

over all intermediate appellate, circuit, and magistrate courts

resides in the Supreme Court of Appeals. W. Va. Const., art.

VIII, § 3.’ Syllabus Point 1, Carter v. Taylor, 180 W. Va. 570,

378 S.E.2d 291 (1989).” Syl. Pt. 2, Stern v. Chemtall, Inc., 217

W. Va. 329, 617 S.E.2d 876 (2005).

University Commons, 230 W. Va. at 596, 741 S.E.2d at 620. Because we find that the instant

lawsuit likewise would benefit from the Mass Litigation Panel’s facilitation of the

maintenance of multiple, similar claims alleging the same injuries by numerous plaintiffs, we

hereby invoke our inherent authority to refer the instant matter to the Mass Litigation Panel

for further proceedings. With respect to the balancing of interests under factor 7, we find

that consideration of this factor also preponderates in favor of the Plaintiffs’ choice of forum

in West Virginia.

In the final analysis, weighing all of the statutory factors of W. Va. Code § 56­

1-1a(a) as required by both the statute, itself, and our prior holding in Syllabus point 5 of

Mylan, 227 W. Va. 641, 713 S.E.2d 356, we are left with the firm conviction that the circuit

court did not abuse its discretion in refusing AEP’s motion to dismiss based upon forum non

conveniens. On balance, we simply cannot conclude that “‘trial in the [Plaintiffs’] chosen

forum [of West Virginia] would establish . . . oppressiveness and vexation to [the]

30

defendant[s] . . . out of proportion to [the] [Plaintiffs’] convenience.’” Sinochem Int’l Co.

Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429, 127 S. Ct. 1184, 1190, 167

L. Ed. 2d 15 (2007) (quoting American Dredging Co. v. Miller, 510 U.S. 443, 447-48, 114

S. Ct. 981, 985, 127 L. Ed. 2d 285 (1994)) (additional quotations and citations omitted).

IV.

CONCLUSION

For the foregoing reasons, the requested writ of prohibition is hereby denied.

Writ Denied.

31