# Petition for Writ of Certiorari — Ball v. Joy Technologies, Inc.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2004%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1033

## Text

In The

Supreme Court of the United States

October Term, 1991
’

RODNEY D. BALL, SR.; HARLESS V. BELCHER;
JUNIOR F. BILLINGS; LYNN S. COMBS;
RONALD J. DAVIS; THEODORE H. HARRIS;
JERRY W. HOLMES; EDDIE D. KIRK; LARRY E.
OLIVER; GERALD H. PROFFITT; DONALD R. ROLEN;
FRANK E. ROOP, JR.; JESSIE F. STAMPER;
ROGER L. TAYLOR; HORACE G. WHITE, JR.;
JOHNNIE WILLIAMS; ROBERT E. THOMPSON;
GENEVA A. THOMPSON; WILLIAM R. LEVITT;
SHIRLEY LEVITT,

Plaintiffs-Appellants,

V.

JOY TECHNOLOGIES, INCORPORATED,
formerly JOY MANUFACTURING COMPANY,
a Pennsylvania Corporation,

Defendant-Appellee.

.
Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The Fourth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI
*

James A. MCKOWEN
HuNT & WILSON
#7 Players Club Drive
Charleston, West Virginia 25311
(304) 344-9651

Counsel of Record for Plaintiffs-Appellants

COCKLE LAW BRIEF PRINTING CO.,, (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a federal court sitting in diversity, and
asked to determine a novel issue of state law, should hold
that a state claim which has not been recognized by that
jurisdiction’s own courts, constitutes a settled question of
law, which will not be disturbed absent the most compel-
ling of circumstances.

2. Whether the lower court erred in holding that the
law of West Virginia and Virginia would not permit
recovery of damages for medical surveillance costs and
emotional distress resulting from exposure to, and bodily
absorption of, toxic chemicals.

ii

TABLE OF CONTENTS

Page
SPupes CA FICE RS cnc ce seencseeeuexsecavies i
pro Ge we lies 8 lag). re rere rrr iii
oe 8 re rer ee Po 1
ER G9. nao pK OG aES 00a whoa k enka ene enen 1
pemnmeeees Gee Bete GAGE, ooo iis cs scanisdansaases 1
REASONS FOR GRANTING THE PETITION....... 4

1. A Conflict Of Authority Has Developed
Among The Federal Circuits Concerning The
Proper Approach To Resolving Novel Issues Of
| gS Pre rr Teer rer ere errr rer ey 4

2. This Case Involves An Important Question Of
Federal Law With Significant Implications For

Forum Shopping And Federal Removal....... 6
CRITE cca vicvsadeakcrnvsccechad s¥anenaunis 7
APPENDIX

A. Opinion Of The United States Court Of
Appeals For The Fourth Circuit - August 5,
rane e mem gets: App 1

B. Order Of The United States Court Of Appeals
For The Fourth Circuit - December 12,

C. Judgment Order Of The United States District
Court For The Southern District Of West Vir-
ginia - September 18, 1990.............. App. 11

ili
TABLE OF AUTHORITIES

Cases:

Ayers v. Jackson Township, 106 N.J. 557, 525 A.2d
SG

Barth v. Firestone Tire & Rubber Co., 673 F.Supp.

ES EE PT TERETE

Blankenship v. General Motors Corp., 406 S.E.2d 781

ee ee LS guy b o05-60 ose des sees es

General Electric Co. v. Knight, 111 S.Ct. 1584 (1991)

Gerardi v. Nuclear Utility Services, Inc., 149 Misc.2d
657, 566 N.Y.S.2d 1002 (1991)

Paoli Railroad Yard PCB Litigation, 916 F.2d 829 (3d

aaa os aN ew b ea od bec decesss

Paul v. Watchtower Bible & Tract Soc. of New York,
819 F.2d 875 (9th Cir. 1987)

Salve Regina College v. Russell, 499 U.S. ; oat
wae. fair, 113 L.Ed.2d 190 (1991) ....

Tritle v. Crown Airways, Inc., 928 F.2d 81 (4th Cir.
1990)

Walker v. Griffith, 626 F.Supp. 350 (W.D.Va. 1986)
Washington v. Union Carbide Corp., 870 F.2d 957

ee uw ivc ns anus eecs cess:

Watkins v. Big John Salvage Co., Civil Action No.
OT DO)

STATUTE:

28 U.S.C. § 1254.....

MISCELLANEOUS:

Uooup.Ct.R. 13.1 .....

Page

oo

erry 3

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

Plaintiffs Rodney D. Ball, et al., petition the court for
a writ of certiorari to review the judgment of the United
States Court of Appeals for the Fourth Circuit in this case.

+

OPINIONS BELOW

The opinion of the United States Court of Appeals for
the Fourth Circuit (App. 1 - 8) is unreported. The opinion
of the United States District Court for the Southern Dis-
trict of West Virginia is reported at 755 F.Supp. 1344.

S

JURISDICTION

The judgment of the United States Court of Appeals
for the Fourth Circuit (App. 1 - 8) was entered on August
5, 1991. The jurisdiction of this Court is invoked under 28
U.S.C. § 1254 pursuant to this Court’s Rule 13.1 allowing
90 days for filing a petition for a writ of certiorari.

>

STATEMENT OF THE CASE

These consolidated cases concern the question of
how federal courts sitting in diversity should address
novel issues of state law. The plaintiffs, who filed suit in
the United States District Court for the Southern District
of West Virginia, sought to determine their right, under
West Virginia, and, in some cases Virginia law, to recover

compensation for medical surveillance costs and the emo-
tional distress resulting from their exposure to, and
absorption of, toxic chemicals.

The defendant in these cases, Joy Manufacturing
Company (now Joy Technologies, Inc.), is a Pennsylvania
Corporation which operated a number of facilities at
which mining equipment motors using polychlorinated
biphenyls (PCB’s) were repaired and serviced.

Eighteen of the 20 plaintiffs in these consolidated
cases have worked at either or both of the corporate
defendant's facilities in Bluefield, West Virginia and Blue-
field, Virginia. During their employment, as a result of
the defendants’ wrongful misconduct, they were occupa-
tionally (and in some cases, nonoccupationally) exposed
to, and absorbed, various toxic chemicals, including poly-
chlorinated biphenyls (PCBs), dioxins, furans, tri-
chloroethylene (TCE), and 1, 1, 1 trichloroethane. These
present and former employees seek to recover compensa-
tion for emotional distress, and for the costs of medical
surveillance necessitated by their increased risk of devel-
oping cancer and other serious illnesses. They do not seek
damages for increased risk, per se, or for any present
illnesses. Their claims involve questions of first impres-
sion under the law of both West Virginia and Virginia.

Two of the 20 plaintiffs in these consolidated cases
are spouses of past or present employees of the defendant
corporation. Mrs. Levitts’ claims are limited solely to loss
of consortium. Mrs. Thompson, who was exposed to toxic
chemicals brought home on her husband's body, clothing

and personal effects, seeks to recover for emotional dis-
tress and the cost of medical surveillance, as well as loss
of consortium.

In August, 1990, the trial court informed the parties
that it would grant defendants’ motion for summary
judgment. Shortly thereafter, plaintiffs filed a motion to
certify questions of West Virginia law, and a motion to
reconsider and/or amend judgment.

On September 18, 1990, the trial court entered a
judgment order granting summary judgment in favor of
the defendant, and dismissing plaintiffs’ cases. In an
associated memorandum order and opinion, the Court
also denied plaintiffs’ motion to certify questions of state
law, and plaintiffs’ motion to reconsider and/or amend
judgment.

Plaintiffs’ notice of appeal was filed on or about
October 1, 1990. On November 19,1990, prior to any brief-
ing or argument, plaintiffs filed a motion to certify ques-
tions of West Virginia law, together with a supporting
memorandum. This motion was denied by an Order
entered on December 12, 1990. On August 5, 1991, the
Fourth Circuit entered an Order affirming the judgment
of the trial court. Although the Fourth Circuit's
unpublished opinion is not considered binding precedent
under the Fourth Circuit’s internal operating procedures
(1.0.P.) 36.5, 36.6, it has, and will, affect decisions in the
lower federal courts of that circuit. See Watkins v. Big John
Salvage Co., Civil Action No. 84-0145-C(s) (N.D.W.Va.)
(denying motion to certify questions of state law in a case
involving exposure to toxic chemicals).

°

REASONS FOR GRANTING THE PETITION

1. A Conflict Of Authority Has Developed Among The
Federal Circuits Concerning The Proper Approach
To Resolving Novel Issues Of State Law.

In recent years, the United States Court of Appeals
for the Fourth Circuit has repeatedly held “that a state
claim which has not been recognized by that jurisdic-
tion’s own courts constitutes a settled question of law
which will not be disturbed by this court absent the most
compelling of circumstances.” Tritle v. Crown Airways,
Inc., 928 F.2d 81, 84 (4th Cir. 1990) (per curiam). Accord
Washington v. Union Carbide Corp., 870 F.2d 957, 962 (4th
Cir. 1989). This very conservative approach to resolving
state law questions of first impression has been employed
even when a case has been filed in state court by the
plaintiff, and removed to state court by the defendant. See
Tritle v. Crown Airways, Inc., supra.

Other appellate courts, including the Ninth Circuit,
however, have continued to recognize that “[flederal
courts are not precluded from affording relief simply
because neither the State Supreme Court nor the state
legislature has enunciated a clear rule governing a partic-
ular type of controversy.” Paul v. Watchtower Bible & Tract
Soc. of New York, 819 F.2d 875, 879 (9th Cir. 1987). Federal
courts may act even in the absence of “clearly established
state law,” and, where appropriate, “advance beyond
existing state court precedent.” /d.

In the case at bar, the trial court relied heavily on
Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir.
1989) and the then unpublished opinion in Tritle v. Crown
Airways, Inc., 928 F.2d 81 (4th Cir. 1990), see 755 F.Supp. at

1372-73, even though the Supreme Court of Appeals of
West Virginia has. earned a reputation as a very liberal,
progressive court, see Walker v. Griffith, 626 F.Supp. 350,
353 (W.D.Va. 1986) (concluding that West Virginia courts
would recognize a cause of action sounding in negligence
against a tavern owner who continued to serve an intoxi-
cated patron) (court noted that West Virginia had “been
in the forefront of adapting the common law to meet
today’s needs” and had shown a “willingness . . . to
expand the common law in the absence of specific legisla-
tive guidance”); Blankenship v. General Motors Corp., 406
S.E.2d 781, 782 (W.Va. 1991) (court referred to its “whole-
sale updating of our tort law in the 1970’s” and observed
that it was obvious that “West Virginia’s personal injury
law has moved light years away from the doctrines
applied in McClung” (a 1971 federal decision applying
West Virginia law)), and the majority of jurisdictions
addressing the issue have allowed the recovery of dam-
ages for medical surveillance costs. See, e.g., In Re Paoli
Railroad Yard PCB Litigation, 916 F.2d 829, 849-52 (3d Cir.
1990); cert. denied sub nom, General Electric Co. v. Knight,
111 S.Ct. 1584 (1991); Barth v. Firestone Tire & Rubber Co.,
673 FSupp. 1466 (N.D.Cal. 1987); Ayers v. Jackson Town-
ship, 106 N.J. 557, 525 A.2d 287 (1987); Gerardi v. Nuclear
Utility Services, Inc., 149 Misc.2d 657, 566 N.Y.S.2d 1002
(1991).

The trial court’s conservative assessment of West Vir-
ginia and Virginia law was upheld by the circuit court,
which also cited to Washington v. Union Carbide Corp., 870
F.2d 957 (4th Cir. 1989).

In Salve Regina College v. Russell, 499 U.S. , 111
S.Ct. 1217, 113 L.Ed.2d 190 (1991), this court addressed

the standard of review to be used by federal appellate
courts in appeals from district court determinations of
state law. These consolidated cases provide an oppor-
tunity to address an equally important question concern-
ing the proper approach for district courts to employ in
resolving unsettled questions of state law in diversity
cases.

2. This Case Involves An Important Question Of Fed-
eral Law With Significant Implications For Forum
Shopping And Federal Removal.

As the court observed in Paul v. Watchtower Bible &
Tract Soc. of New York, 819 F.2d 857, 879 (9th Cir. 1987):

Were we able to invoke only clearly established
state law, litigants seeking to protect their rights
in federal courts by availing themselves of our
diversity jurisdiction would face an inhospitable
forum for claims not identical to those resolved
in prior cases. Equally important, a policy by the
federal courts never to advance beyond existing
state court precedent would vest in defendants
the power to bar the successful adjudication of
plaintiffs’ claims in cases with novel issues;
defendants could ensure a decision in their
favor simply by removing the case to federal
court. Congress, in providing for removal, cer-
tainly did not intend to provide such a weapon
to defendants.

CONCLUSION

For the foregoing reasons, the petition for
writ of certiorari should be granted.

Respectfully submitted,

James A. McCKowen*

Hunt & WiLson

#7 Players Club Drive
Charleston, West Virginia 25311
(304) 344-9651

*Counsel of Record

APPENDIX

os
a ud .
7 -
49 Diet!
: i]
7 ,
i f y
Uni ;
a -
= "
v : ;
‘a "
aS
’ ~ ;
a : 1 ,
on
-
:
on i
‘ —— n
F:
7 7 _
| a
‘e 7
1
; a
7 a:
_ ' - ,
om ia @
-# ~
: s \ 7
1 ,
} a ;
i >

App. 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Ropney D. BAL, Sr; HARLEss

V. BELCHER; JUNIOR F.

Bittincs; LYNN S. Comgss;
RONALD J. Davis; THEOoDpoRE H.
Harris; JERRY W. Homes;

Eppie D. Kirk; Larry E. Ontver;
GERALD H. Prorritt; DONALD R.
Roven; FRANK E. Roop, Jr.;

Jessie F. Stamper; Rocer L.
Taytor; Horace G. Wuirte, Jr.;
JOHNNIE WituaAms; Rosert E.
THOMPSON; GENEVA A. THOMPSON;
WituiaAM R. Levitt; Siirgtey Levitt,

No. 90-1537

Plaintiffs-Appellants,
V.

Joy TECHNOLOGIES, INCORPORATED,
formerly Joy Manufacturing
Company, a Pennsylvania
Corporation,

Defendant-Appellee.

ee

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
Elizabeth V. Hallanan, District Judge.
(CA-87-268-1, CA-88-133-1, CA-88-1691-1)

Argued: May 8, 1991
Decided: August 5, 1991

App. 2

Before WILKINSON, Circuit Judge, CHAPMAN, Senior
Circuit Judge, and HILTON, United States District Judge
for the Eastern District of Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Hilton wrote the
opinion, in which Judge Wilkinson and Senior Judge
Chapman joined.

COUNSEL

ARGUED: James Anthony McKowen, HUNT &
WILSON, Charleston, West Virginia, for Appellants.
Dennis Charles Sauter, JACKSON & KELLY, Charleston,
West Virginia, for Appellee. ON BRIEF: Robert L. Stew-
art, Jr, JACKSON & KELLY, Charleston, West Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this
circuit. See I.O.P. 36.5 and 36.6.

OPINION
HILTON, District Judge:

The plaintiffs in this consolidated action are eighteen
former employees of the defendant Joy Technologies, Inc.
and two spouses of former employees. The plaintiffs
allege that while employed at the defendant’s corporate
facilities in Bluefield, West Virginia, and Bluefield, Vir-
ginia, they were wrongfully exposed to and absorbed
various toxic chemicals. The district court granted Joy’s
motion for summary judgment finding that the plaintiffs
had not sustained any physical injury from their exposure

App. 3

to toxic chemicals and having suffered no physical injury,
the common law of West Virginia and Virginia would not
allow them to recover damages for emotional distress or
the costs of medical surveillance. The plaintiffs appealed.
Finding no error in the granting of summary judgment in
favor of Joy Technologies, we affirm.

I.

The defendant Joy Technologies, Inc. (hereinafter
“defendant” or “Joy”) began to manufacture and sell
mining equipment in 1965. The mining equipment manu-
factured by Joy contained electric motors that used poly-
chlorinated biphenyls (hereinafter “PCBs”) as a coolant.
In December of 1968, Joy purchased the Hart Electric
building in Bluefield, West Virginia. Joy utilized the facil-
ity in Bluefield to repair and rebuild the motors used in
the mining equipment it manufactured. The defendant
used a vapor degreaser on the motors that contained
trichloroethylene (hereinafter “TCE”).

In 1975, Joy began construction on a new facility in
Bluefield, Virginia. Joy transferred its manufacturing and
repair operations to the new plant in 1988. Joy utilized a
new vapor degreaser that contained 1,1,1 tri-
chloromethane at the Bluefield, Virginia facility. The tear-
down and cleaning of motors continued at the Bluefield,
West Virginia plant until September 1980. Joy’s Bluefield,
West Virginia facility was subsequently sold to Elwin
Aliff.

The Bluefield, West Virginia plant was tested for PCB
contamination in October, 1985. In January, 1986, the
Environmental Protection Agency (hereinafter “EPA”)

App. 4

conducted an inspection of the West Virginia site. On
February 20, 1986, the EPA issued a Superfund Cleanup
order to Elwin Aliff and Lin-Elco Corporation of which
Aliff was president. Aliff retained Remcor, Inc. to conduct
a clean-up of the site. The clean-up effort generated pub-
licity revealing that Joy employees had been exposed to
toxic chemicals.

On March 17, 1987, sixteen former employees of Joy
filed suit in the United States District Court for the South-
ern District of West Virginia (Ball, et al. v. Joy Manufactur-
ing Company, Civil Action No. 1:87-0268). The Ball case
was consolidated by court order on August 10, 1989, with
Thompson v. Joy Technologies, Inc., Civil Action No.
1:88-0133, and Levitt v. Joy Technologies, Inc., Civil Action
No. 1:88-1691. (The consolidated action included twenty
plaintiffs, eighteen of whom were former employees of
Joy at either the Bluefield, West Virginia, or Bluefield,
Virginia site, while the other two plaintiffs were spouses
of former employees. The plaintiffs alleged that while
employed at Joy’s corporate facilities in Bluefield, West
Virginia, and Bluefield, Virginia, they were wrongfully
exposed to and absorbed various toxic chemicals includ-
ing PCBs, dioxins, furans, TCE, and 1,1,1 tri-
chloromethane. Plaintiffs claimed that their exposure to
such toxic chemicals constituted a physical injury and
scught to recover damages for their resultant emotional
distress and for the costs of medical surveillance
allegedly necessitated by their exposure.

On September 18, 1990, the district court granted
summary judgment for the defendant Joy Technologies.
The district court found that the plaintiffs claimed their
exposure to toxic chemicals was an injury in and of itself

App. 5

and that none of the plaintiffs alleged that they sustained
any physical injuries apart from their exposure. The dis-
trict court concluded that the mere exposure to toxic
chemicals did not constitute a physical injury. Having
suffered no physical injury, the district court ruled that
the common law of West Virginia and Virginia would not
allow the plaintiffs to recover damages for emotional
distress or the costs of medical surveillance.

II.

The plaintiffs claim that their exposure to toxic chem-
icals and the increased risk of developing cancer and
other diseases resulting from such exposure constituted
an injury that would entitle them to recover damages for
emotional distress. The plaintiffs contend on appeal that
the district court erred in holding that damages for emo-
tional distress could not be recovered.

Courts in West Virginia and Virginia have recognized
that damages for emotional distress may be recovered in
three specific instances: (1) where the emotional distur-
bance results from an actual physical injury caused by the
impact or occurrence of the tort; (2) where there is no
initial impact or injury but physical injury thereafter
results as the causal effect of the defendant's wrong; and
(3) where there is no impact or physical injury but emo-
tional disturbance results from an intentional or wanton
wrongful act caused by the defendant. Monteleone v. Coop-
erative Transit Co., 36 S.E.2d 475, 478 (W. Va. 1945); Hughes
v. Moore, 197 S.E.2d 214, 219 (Va. 1973). Except for the
intentional infliction of emotional distress, damages for

App. 6

emotional distress may not be recovered under West Vir-
ginia or Virginia law absent a finding of physical injury.
Monteleone, 36 S.E.2d at 478; Hughes, 197 S.E.2d at 219.

The mere exposure of the plaintiffs to toxic chemicals
does not provide the requisite physical injury to entitle
the plaintiffs to recover for their emotional distress.
Numerous courts have held that exposure to hazardous
substances does not constitute a physical injury. See
Adams v. Johns-Manville Sales Corp., 783 F.2d 589, 593 (5th
Cir. 1986) (rejecting plaintiff's claim for mental distress
damages under Louisiana law because he failed to estab-
lish that he sustained an injury from his exposure to
asbestos products); Plummer v. Abbott Laboratories, 568 F.
Supp. 920 (D.R.I. 1983) (finding that plaintiffs’ ingestion
of diethylstilbestrol that allegedly increased the risk of
contracting cancer did not per se constitute a physical
injury under Rhode Island law); Sypert v. United States,
559 F. Supp. 546 (D.D.C. 1983) (concluding that because
the plaintiff had suffered no physical injury from his
exposure to tubercle bacilli, he could not recover mental
distress damages under Virginia law); Eagle-Picher Indus-
tries, Inc. v. Cox, 481 $.2d 517 (Fla. Dist. Ct. App. 1985)
(holding that Florida law did not recognize inhalation of
asbestos as a physical injury); Payton v. Abbott Laborato-
ries, 437 N.E.2d 171 (Mass. 1982) (plaintiff's in utero
exposure to diethylstilbestrol was not a physical injury or
harm under Massachusetts law).

Plaintiff urges this court to expand the law of torts in
West Virginia and Virginia and recognize exposure to
toxic substances as a physical injury. The Erie doctrine
permits federal courts “to rule upon state law as it pres-
ently exists and not to surmise or suggest its expansion.”

App. 7

Washington v. Union Carbide Corp., 870 F.2d 957, 962 (4th
Cir. 1989). Because the law of West Virginia and Virginia
requires physical injury before a plaintiff may recover
damages for emotional distress, the district court was
correct in concluding that the exposure of the plaintiffs to
toxic chemicals did not constitute an injury that would
entitle them to recover damages for emotional distress.

IIT.

The plaintiffs also claim that the district court erred
in holding the costs of medical surveillance could not be
recovered. In their claim for medical surveillance costs,
plaintiffs seek to recover the costs of periodic medical
examinations designed to monitor their health and facili-
tate early detection of disease caused by their exposure to
toxic chemicals.

A claim for medical surveillance costs is simply a
claim for future damages. Plaintiff correctly points out
that the law of West Virginia allows the recovery of the
reasonable value of future medical expenses necessitated
by the defendant’s wrong. See, e.g., Jordan v. Bero, 210
S.E.2d 618, 637 (W. Va. 1974). However, such relief is only
available where a plaintiff has sustained a physical injury
that was proximately caused by the defendant. Jordan, 210
S.E.2d at 637; Long v. City of Weirton, 214 S.E.2d 832, 860
(W. Va. 1975); accord Hailes v. Gonzales, 151 S.E.2d 388, 390
(Va. 1966). Plaintiffs have not demonstrated that they are
suffering from a present, physical injury that would enti-
tle them to recover medical surveillance costs under West
Virginia or Virginia law.

App. 8

Plaintiffs have proffered several public policy argu-
ments for allowing individuals to recover the costs of
medical monitoring where there has been no manifesta-
tion of physical injury. We agree with the district court
that such considerations are better left to the respective
legislatures and highest courts of West Virginia and Vir-
ginia.

For the foregoing reasons, the disposition of the case
below is

AFFIRMED.

App. 9

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 90-1537

RODNEY D. BALL, SR., ET AL.,
Appellants,
versus
JOY TECHNOLOGIES, INC.,
Appellee.

ORDER

We have considered the motion of appellants to cer-
tify certain questions of law to the Supreme Court of
Appeals of West Virginia and the response thereto. We
are of opinion the motion should be denied.

It is accordingly ADJUDGED and ORDERED that the
said motion to certify certain questions of law to the
Supreme Court of Appeals of West Virginia shall be, and
the same hereby is, denied.

App. 10

With the concurrences of Judge Murnaghan and
Judge Wilkinson.

/s/ H. E. Widener, Jr.
For the Court

A True Copy: Teste:
John M. Greacen, Clerk

By Cheryl Hughes
Deputy Clerk

James Anthony McKowen, Esq.
HUNT & WILSON

7 Players Club Drive

P. O. Box 2506

Charleston, WV 25329

App. 11

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

RODNEY D. BALL, SR., et al.,

ieee Civil Action
V. No. 1:87-0268
JOY MANUFACTURING CO.,
a Pennsylvania Corporation,

Defendant.
and

ROBERT E. THOMPSON and
GENEVA ANN THOMPSON,

— Civil Action
V. No. 1:88-0133
JOY TECHNOLOGIES, INC.
(formerly Joy Manufacturing
Company), a Pennsylvania

Corporation,
Defendant.
and
WILLIAM R. LEVITT and
SHIRLEY LEVITT, Civil Action
Plaintiffs, settle aiaiti
V.

JOY TECHNOLOGIES, INC., a
Delaware Corporation, (formerly
Joy Manufacturing Company, a
Pennsylvania Corporation),

Defendant.

App. 12

JUDGMENT ORDER

In conformity with the Order entered herein of even
date herewith, it is ORDERED and ADJUDGED that judg-
ment shall be entered in favor of the Defendant and
against the Plaintiffs.

The Clerk is directed to remove this action from the
docket of this Court and to mail a certified copy of this
Order to counsel of record.

IT IS SO ORDERED this 18th day of September, 1990.
ENTER:
/s/ Elizabeth V. Hallanan

ELIZABETH V. HALLANAN
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2004%3A1. Public record. Not legal advice.