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.

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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

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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

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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.

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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