Amicus Curiae Brief — Philip Morris USA, Inc. v. Accord (No. 07-806)

MOTION FILED es

JAN 16 2008 No. 07-806

O\

IN THE

Supreme Court of the United States

PuiLip Morris USA Inc., BRown & WILLIAMSON

HoLpINcs, INc., LORILLARD ToBacco CoMPANY

AND R.J. REYNOLDS TOBACCO COMPANY,

Petitioners,

Vv.

RONALD ACCORD, JR., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME Court OF APPEALS WEST VIRGINIA

Motion FOR LEAVE TO FILE AND BRIEF Amici CURIAE OF

Ciba CORPORATION, CHEMTALL INCORPORATED, CYTEC

INbusTRIES INc., G.E. Betz, INC., AND ZINKAN ENTERPRISES INC.

IN SUPPORT OF PETITIONERS

CHARLES G. CoLE

Counsel of Record

SHANNEN W. COFFIN

Mark PF ITZSIMMONS

THERESA ALLYN QUEEN

-STEPTOE & JOHNSON L.L.P

1330 Connecticut Ave., NW

Washington, D.C. 20036

(202) 429-3000

Counsel for Amicus Curiae

Ciba Corporation

[Additional Counsel Listed on Signature Page for the Brief]

Lis 195 ce

OUNSE. PRESS

(&OO' 274-3321 ¢ (SOO 359-6859

No. 07-806

IN THE

Supreme Court of the United States

PHILIP Morris USA Inc., BROowN & WILLIAMSON

Ho pines, Inc., LoRILLARD ToBAcco COMPANY

AND R.J. REYNOLDS ToBpacco CoMPANY,

Petitioners,

v.

RONALD ACCORD, JR., ET AL.,

Respondents.

On PETITION ror A Writ oF CERTIORARI TO THE

SUPREME CourRT OF APPEALS WEST VIRGINIA

wae a —+—

sabaadiaaiieadimeimenmietammemneendmtmenaditel

Motion FOR LEAVE TO FILE AND BriEF AMICI CURIAE OF

Ciba CORPORATION, CHEMTALL INCORPORATED, CYTEC

INDUSTRIES INC., G.E. Betz, INc., AND ZINKAN

ENTERPRISES INC.

Pursuant to Supreme Court Rule 37.2(a), movants

Ciba Corporation, Chemtall Incorporated, Cytece

Industries, Inc., G.E. Betz, Inc., and Zinkan Enterprises

Inc., request leave to file the accompanying Brief Amici

Curiae in Support of Petitioners.” Movants’ brief brings

* Counsel for Amici Curiae provided timely notice of intent

to file the accompanying brief to Counsel of Record for both

Petitioners and Respondents on January 4, 2008. Petitioners

(Cont’d)

to the attention of the Court a relevant matter that will

be of considerable help in considering the Petition,

see Sup. Ct. R. 37.1 - namely, that the unconstitutional

proceeding described in the Petition has been repeatedly

blessed by the West Virginia state courts. The breadth

of this problem is further reason to grant the Petition.

Like Petitioners, Movants are defendants in tort

litigation currently pending in West Virginia state court.

Movants’ experience in that separate litigation

demonstrates the “increasing frequency,” Pet. at 2, and

startling scope of West Virginia’s disregard for this

Court’s punitive damages jurisprudence. The

accompanying brief describes how the constitutionally

deficient punitive damages procedures employed in

Petitioners’ case have been extended by West Virginia

courts into other contexts. It also illustrates how the

West Virginia Supreme Court of Appeals shows no

interest in preventing further growth in the use of these

procedures and indeed appears to be fully supportive of

them.

Movants are manufacturers, distributors and sellers

of a beneficial water treatment chemical used, znter alia,

to recycle water in coal processing operations. They have

been sued in West Virginia Circuit Court by a putative

class of coal preparation plant workers who allege

exposure to the water cleaner. See Stern v. Chemtall,

No. 03-C049M (W.Va. Marshall County Cir. Ct. April 1,

2003). The Stern plaintiffs seek medical monitoring

(Cont'd)

consented to the filing of the attached brief in a letter that has

been lodged with the Clerk of this Court. Respondents’ counsel

refused consent.

and punitive damages on a class-wide basis.” As in

Petitioners’ case, the trial court adopted a case

management plan which bifurcated punitive damage

issues — the availability of punitive damages and a

punitive damages multiplier — from logically precedent

issues relating to liability. Thus, the parties will litigate

class certification and liability, if any, for medical

monitoring only after completion of the punitive damages

trial phase. Memorandum Order (January 9, 2007). The

West Virginia Supreme Court of Appeals allowed this

trial plan to stand when it denied a writ of prohibition in

a published opinion. State ex rel. Chemtall Ine. v.

Madden, No. 33380, 2007 WL 4098937 (W.Va. Nov. 15,

2007).

Movants will themselves seek a writ of certiorari in

this Court in a timely manner. They support the petition

here in order to highlight the imperative need for this

Court’s intervention. As these cases demonstrate, the

courts of West Virginia continue to apply facially

defective methodologies for calculating punitive damages

in mass tort litigation. Such “reverse bifurcated trials,”

which calculate punitive damages before individualized

factors such as causation, put the cart before the horse.

The increasing reliance on this constitutionally deficient

procedure creates the risk that punitive damages will

be assessed without regard to any individual plaintiffs’

actual harm, as required by this Court’s decisions in

State Farm Mutual Automobile Insurance Co. v.

** Movants, Ciba Corporation and Cytec Industries, Inc.

have also been sued in West Virginia Circuit Court by a separate

putative class of coal preparation workers. See Pettry v. Peabody

Holding Co., No. 02-C-58 (W. Va. Marshall County Cir. Ct. March

28, 2002). Two Pettry plaintiffs have intervened in Stern. The

trial plan discussed herein was entered in Stern only.

Campbell, 538 U.S. 408 (2003) and Philip Morris USA

Inc. v. Williams, 127 S. Ct. 1057 (2007). Immediate

review is warranted before these unconstitutional

proceedings go forward. They threaten to distort the

litigation process in a manner that cannot be corrected

on appeal, as Justice Benjamin noted in his dissent from

the West Virginia Supreme Court of Appeals’ denial of

the writ of prohibition. Chemtall, 2007 WL 4098937 at

*5 (Benjamin, J., concurring in part and dissenting in

part). -

Accordingly, Movants respectfully request the

opportunity to set forth more fully the growing problem

in West Virginia that justifies the grant of the Petition.

Respectfully submitted,

CHARLES G. COLE

Counsel of Record

SHANNEN W. CoFFIN

Mark P. Fitzsimmons

THERESA ALLYN QUEEN

STEPTOE & JOHNSON L.L.P

1330 Connecticut Ave., NW

Washington, D.C. 20036

(202) 429-3000

Counsel for Amicus Curiae

Ciba Corporation

[Additional Counsel Listed on Signature Page for the Brief]

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ......... ii

INTEREST OF AMICI CURIAE ............ 1

SUMMARY OF ARGUMENT ............... 4d

CON Cana chce se ssh enecac ics des es 5

I. THE PETITION SHOULD BE

GRANTED TO CURTAIL THE

EXPANDING USE OF CONSTITU-

TIONALLY DEFECTIVE PUNITIVE

DAMAGES PROCEDURES IN WEST

po We 8 0 ¢ 9. 5

II. MASS TORT DEFENDANTS ARE

UNLIKELY TO OBTAIN RELIEF

FROM CONSTITUTIONALLY

DEFECTIVE PUNITIVE DAMAGES

PROCEDURES IN THE ABSENCE OF

ACTION BY THIS COURT ........... 10

a a a 13

APPENDIX — MEMORANDUM ORDER OF

THE CIRCUIT COURT OF MARSHALL

COUNTY, WEST VIRGINIA DATED

JANUARY 9, 2007 RE: STERN, ET AL. v.

CHEMTALL INC., ETAL. ..............4. la

TABLE OF CITED AUTHORITIES

Page

Cases

BMW of N. Am. Inc. v. Gore,

Ne i, LED onc ccwsecensnsaseeseewes 5

Bower v. Westinghouse Elec. Corp,

206 W.Va. 138, 522 S.E.2d 424

Se ee 3

Gibson v. Berryhill,

ks 11

In re Gen. Motors Corp. Pick-Up Truck

Fuel Tank Prods. Liab. Litig.,

55 F.3d 768 (Sd Cir. 1995) .............2005- 12

In re Rhone-Poulenc Rorer, Inc.,

Bk P06 1206 (7th Cir. 1995) ................. 12

Philip Morris USA Inc. v. Williams,

ase, at Ge, 1001 C2007) ........ passim

State ex rel. Chemtall Inc. v. Madden,

No. 33380, 2007 WL 4098937

Rs ee: (rrr 4,10, 11

State Farm Mutual Automobile

Insurance Co. v. Campbell,

BOR Eb |)

iil

Cited Authorities

Page

Constitution

Ris Meena a. MOU, RAY oc kc ince wackasas pussim

Books and Articles

Lewis Carroll, Alice’s Adventures in

Wonderland (Phillip Smith ed., Dover

Publications 1993) (1898)

Te)

“eee ee @* oO we ewe eee ee see

No. 07-806

IN THE

Supreme Court of the United States

PHILip Morris USA Inc., BRown & WILLIAMSON

Ho pincs, Inc., LoRILLARD ToBAcco COMPANY

AND R.J. REYNOLDS ToBAcco COMPANY,

Petitioners,

v.

RONALD ACCORD, JR., ET AL.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME Court OF APPEALS WEST VIRGINIA

Motion FOR LEAVE TO FILE AND BrieF Amici CuRIAE OF

Ciba CORPORATION, CHEMTALL INCORPORATED, CYTEC

INDUSTRIES INC., G.E. BETz, INC., AND ZINKAN

ENTERPRISES INC.

INTEREST OF AMICI CURIAE!

Amici Curiae Ciba Corporation, Chemtall

Incorporated, Cytec Industries Inc., G.E. Betz, Inc., and

1. No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amici curiae, their members, or their

(Cont'd)

2

Zinkan Enterprises Inc. file this brief in support of

Petitioners to emphasize the mounting constitutional

inequities facing mass tort defendants in the determination

of punitive damages by the courts of West Virginia.

Petitioners have cogently explained the need for this

Court’s intervention to correct an unconstitutional

approach to the adjudication of punitive damages claims

that the West Virginia courts employ with “increasing

frequency.” Pet. at 2. Amici explain herein that the problems

identified in the Petition are neither isolated nor likely to

be resolved by the West Virginia Supreme Court of

Appeals.

Like Petitioners, Amici Curiae are currently

defendants in mass tort litigation seeking punitive damages

in West Virginia state trial court. Amici are manufacturers,

distributors and sellers of polyacrylamide, a chemical used

to purify drinking water and treat waste water.

Polyacrylamide has numerous beneficial uses, including the

cleaning of water used in coal processing operations. The

substance separates coal sediment from process water,

thereby preventing pollution of streams and rivers and

permitting the recycling of the water. The safety of

polyacrylamide products has been repeatedly assessed by

regulatory agencies throughout the world, which have

found them to be safe and appropriate for these

applications.

Amici have been sued in a putative class action pending

in Marshall County Circuit Court. See Stern v. Chemtall

(Cont’d)

counsel made a monetary contribution to its preparation or

submission. The Petitioners have consented to the filing of this

brief. The Respondents have withheld their consent.

3

Inc., No. 03-C-49M (W.Va. Marshall County Cir. Ct. April

1, 2003) (“Stern”). This action asserts theories of strict

liability against Amici for their sale of and conduct with

respect to polyacrylamide products used in coal

preparation.’ Although no class has been certified, plaintiffs

seek class-wide relief in the form of medical monitoring

pursuant to Bower v. Westinghouse Elec. Corp., 206 W.Va.

133, 522 S.E.2d 424 (W.Va. 1999).? Most relevant here, they

also seek punitive damages.

This case vividly demonstrates West Virginia’s growing

disregard for this Court’s punitive damages jurisprudence.

As in the case under review, the case management order in

Stern requires the jury to determine both punitive damages

liability and a punitive damages multiplier before any facts

are developed regarding the individual experience of any

single plaintiff. Remarkably, the case management order

will require the jury to assess the availability and the degree

of punitive damages before it is determined whether a) a

class can be certified; b) whether a single defendant is liable

to any plaintiff; or c) whether any plaintiff is entitled to

2. Amici Ciba Corporation and Cytec Industries, Inc., have

also been sued in a separate class action brought by a putative

class of coal preparation plant workers, two representatives of

which have intervened in Stern. Pettry v. Peabody Holding Co.,

No. 02-C-58, (W. Va. Marshall County Cir. Ct. March 28, 2002)

(“Pettry”). A third plaintiff, purporting to represent a putative

class from a separate water treatment industry, has also

intervened in the Stern action. The trial plan at issue discussed

in this brief applies only to the Stern matter.

3. A medical monitoring claim under Bower imposes liability

not for actual harm but for increased risk of future disease.

Bower, 206 W. Va. at 142, 522 S.E.2d at 433.

4

medical monitoring due to an increased risk of future

disease.

Amici’s trial plan order provides significant insight

into both the substantive problem facing mass tort

defendants in West Virginia courts and the failure of the

West Virginia Supreme Court of Appeals to address the

problem. That court recently denied review of Amici’s

petition for a writ of prohibition, concluding that the trial

plan “does not guarantee a result at odds with” this

Court’s decisions. Chemtall v. Madden, No. 33380, 2007

WL 4098937 at *4 (W.Va. Nov. 15, 2007) (citing Philip

Morris USA Inc. v. Williams, _U.S.__,127S. Ct. 1057

(2007)). While Amici intend to seek certiorari to ask this

Court to review that decision, this Petition may be

resolved before Amici’s petition is fully briefed.‘

Accordingly, Amici have a strong interest in ensuring

that this Court has the benefit of Amici’s experience in

considering the Petition.

SUMMARY OF ARGUMENT

This court should grant the Petition to correct West

Virginia’s repeated use of a constitutionally deficient

punitive damages procedure. This procedure is gaining

increasing currency in the courts of West Virginia, a magnet

jurisdiction for mass tort litigation. As Amici’s experience

suggests, the West Virginia Supreme Court of Appeals has

shown no willingness to set matters right. Thus, an

increasing number of mass tort defendants are likely to be

subjected to liability for punitive damages before any

demonstration of the basic elements of liability and

causation on plaintiffs’ underlying claims. The trial order

4. Amici’s petition is currently due on February 13, 2008.

5

in Amici’s cases illustrates the broad reach of the procedure

challenged in the Petition. The trial order applies the

“punitives first” bifurcation procedure to a putative class

action seeking only equitable relief in the form of medical

monitoring. Not only is this methodology wholly

inconsistent with the due process precedent of this Court,

it is also unlikely to be corrected in the absence of action

by this Court. The issue is ripe for review, and the Petition

should be granted.

ARGUMENT

I. THE PETITION SHOULD BE GRANTED TO

CURTAIL THE EXPANDING USE OF

CONSTITUTIONALLY DEFECTIVE PUNITIVE

DAMAGES PROCEDURES IN WEST VIRGINIA

COURTS

West Virginia courts have drawn widespread criticism

for their handling of mass tort claims. See Pet. at 25 & n.6.

The bifurcated punitive damages procedure challenged in

the Petition further supports a perception that a corporate

defendant is at an unfair disadvantage litigating in the

courts of West Virginia. This procedure, imposed with

increasing frequency in the state disregards this Court’s

guidance regarding the constitutionally mandated

safeguards for imposing punitive damages. See BMW of

N. Am. Inc. v. Gore, 517 U.S. 559 (1996); State Farm

Mutual Automobile Insurance Co. v. Campbell, 538 U.S.

408 (2003); Philip Morris, 1278S. Ct. 1057.

The Petition provides but one example of the West

Virginia courts’ unwillingness to follow this Court’s due

process jurisprudence. As Amici’s experience

6

demonstrates, the constitutional conundrum highlighted

in the Petition is not isolated, but has spread into broader

contexts in West Virginia courts — with no end in sight.

The West Virginia Supreme Court of Appeals has shown

no interest in addressing these problems. Its inaction

ensures that mass tort defendants will face hopelessly

dysfunctional punitive damage proceedings, in which basic

notions of procedural fairness are disregarded for the sake

of expediency.

While hardly unique in West Virginia mass tort cases,”

the trial plan applicable to Amici is illustrative of the

problem. Amici produce and sell a beneficial chemical

substance that has never been determined to have harmed

any person or even to possess the potential to cause harm.

Nevertheless, they are now being forced to litigate their

liability for punitive damages and an across-the-board

multiplier for punitive damages, before being given an

opportunity to dispute threshold issues of class certification,

causation and liability for the medical monitoring that

plaintiffs seek.

5. West Virginia has already employed a reverse bifurcation

format in several different asbestos matters involving the claims

of approximately 30,000 plaintiffs. See Jn re Asbestos Cases, No.

89-C-999 (W. Va. Kanawha County Cir. Ct. Feb. 15, 1989); Jn re

Asbestos Cases II, No. 91-C-7777 (W. Va. Kanawha County Cir.

Ct. Mar. 13, 1991); Jn re Asbestos Cases III, No. 92-C-8888 (W.

Va. Kanawha County Cir. Ct. Feb. 6, 1992); In re Asbestos

Personal Injury Litigation, No. 02-C-9004 (W. Va., Mongolia

County Cir. Ct. Sept. 23, 2002); In re Asbestos Personal Injury

Litigation, No. 03-C-9800 (W. Va., Kanawha County Cir. Ct. Feb.

11, 2003). As Petitioners and Amici demonstrate, West Virginia

recently expanded this trial format well outside of the asbestos

arena. See also Leach v. EJ. DuPont de Nemours & Co., No.

01C-608 (W. Va., Wood County Cir. Ct. Aug. 30, 2001) (asserting

a claim for medical monitoring for chemical exposure).

7

The Stern plaintiffs seek recovery in strict liability

against Amici for their sale of polyacrylamide, a substance

that facilitates separation of solids suspended in liquid

waste streams. In preparing coal for market, rock and

sediment must be separated from usable coal, a process

that results in a large amount of dirty waste water.

Polyacrylamide products separate solid particles from this

waste water, permitting reuse of the cleaned water and

avoiding the pollution of rivers and streams that was once

common in coal processing. Plaintiffs allege that a trace

residual chemical in polyacrylamide, known as acrylamide,

is likely to cause future diseases warranting medical

monitoring. Plaintiffs’ claims are undercut by the findings

of regulatory agencies around the world, which have found

no risk to human health presented by the trace amounts of

the substance in the products at issue.

On January 9, 2007, over the objection of the Amici,

the Circuit Court of Marshall County entered a case

management order bifurcating issues of product defect and

punitive damages from class certification and medical

monitoring. Mem. Order of Jan. 9, 2007.° In Phase I, the

parties will try issues relating to plaintiffs’ strict liability

theories.’ On that basis alone, the court will then inquire

6. The relevant portions of this Memorandum Order have

been attached as an addendum for the convenience of the Court.

App. at l(a).

7. The Order sets several strict liability issues for trial in

Phase I, including whether the defendants had actual or

constructive knowledge of the alleged hazard posed by their

products; whether the state of medical, scientific, and industry

knowledge throughout the time of alleged exposure could have

(Cont'd)

8

“whether or not the Defendants, or any of them, acted in

such a manner as to justify punitive damages,” and, if so,

“what multiple of general damages would suffice as a

deterrent of future actions against that particular

Defendant.” App. at 4(a). Only upon completion of the trial

for punitive damages will the court hear in Phase IJ “issues

of medical causation, medical monitoring viability, and

damages.” /d. In short, punishment will be assessed in the

abstract, without any actual finding as to what, if any,

wrongful actions must be deterred.

As this Court has repeatedly stressed, however, the

determinations of liability for, and the amounts of, punitive

damages depends on the facts of a particular case, including

the circumstances surrounding an individual plaintiff’s

purported injury. See, e.g., State Farm, 538 U.S. at 418

(requiring consideration of “the disparity between the

actual or potential harm suffered by the plaintiff and the

punitive damages award”); id. at 425 (“The precise award

[of punitive damages] in any case... must be based upon

the facts and circumstances of the defendant’s conduct and

the harm to the plaintiff.”). The Due Process Clause

requires that a court “avoid procedure that unnecessarily

deprives juries of proper legal guidance,” so that the juries

“are not asking the wrong question.” Philip Morris, 127

S. Ct. at 1064.

(Cont'd)

reasonably foreseen that persons working with the products were

at risk to sustain injury as a result of the exposure; whether t!

defendants properly tested their products; whether the products

are unreasonably dangerous; and issues of warning, proper

instruction, and provision of protective devices. App. at 2(a).

9

By putting liability and multipliers for punitive

damages before the logically and legally precedent

questions of injury and causation, these trial management

orders create precisely the jury confusion that due process

prevents. Under this procedure, juries are left to determine

eligibility for punitive damages and the amount by which

all plaintiffs’ awards should be enhanced before they

determine whether a single plaintiff has prevailed against

any defendant. See Philip Morris, 127 S. Ct. at 1063

(discussing danger of jury speculation on issues such as:

“How many such victims are there? How seriously were

they injured? Under what circumstances did the injury

occur?”). Such a procedure recalls the Queen of Hearts’

pronouncement, “Sentence first — verdict afterwards.”

Lewis Carroll, Alice’s Adventures in Wonderland 83 (Philip

Smith ed., Dover Publications 1993)(1898).

While Amici’s and Petitioner’s cases raise the same

constitutional infirmity, the differences between the

underlying claims demonstrate the seemingly limitless

applicability of the defective bifurcation procedure. The

trial plan confronting Amici does not involve claims for

compensatory damages. It only presents claims for

equitable relief in the form of medical monitoring. Plaintiffs

are also permitted to seek punitive damages for a class of

plaintiffs without being required to prove the prerequisites

of class certification. The trial court’s order demonstrates

the pressing need for corrective action by this Court.

10

Il. MASS TORT DEFENDANTS ARE UNLIKELY TO

OBTAIN RELIEF FROM CONSTITUTIONALLY

DEFECTIVE PUNITIVE DAMAGES

PROCEDURES IN THE ABSENCE OF ACTION

BY THIS COURT

The West Virginia Supreme Court of Appeals has

shown no inclination to correct the constitutionally defective

procedures for punitive damages employed by West

Virginia trial courts, including the reverse bifurcation at

issue here. Mass tort defendants are left without recourse

for the injuries that arise from the unconstitutional design

of the proceedings. This upside down structure has

in terrorem effects. Faced with the threat of a punitive

damages determination before being permitted a chance

to rebut plaintiffs’ claims of injuries, mass tort defendants

are under tremendous pressure to settle early. Under these

circumstances, this Court’s immediate review is necessary.

In the case under consideration, the West Virginia

Supreme Court of Appeals refused, without comment, the

writ of prohibition sought by the Petitioners.

Pet. App. la-2a. In Chemtall, however, decided just one

week later, the Court issued an opinion. That opinion makes

clear that the West Virginia Supreme Court is unlikely ever

to resolve the issues presented in the Petition. Amici

argued, as Petitioners did in their case, that “the circuit

court’s procedure for awarding punitive damages violates

[Amici’s] due process rights as set forth in Philip Morris

because it requires a jury to determine punitive damages

without taking into account a plaintiff’s individualized harm

and prior to a finding of actual liability against any

defendant.” Chemtall, 2007 WL 4098937, at *4. The court

found “no merit” to this argument. It reasoned that the

11

trial plan, “on its face, is not a clear error of law because it

does not guarantee a result at odds with Philip Morris.”

Id. Because the trials have not yet occurred, the Court

concluded that a decision on the constitutionality of punitive

damages would be premature. Jd.

That analysis, however, ignores the nature of the error

and the inevitability of the due process deprivation that

will occur as a result. It is the very structure here that

causes the constitutional deprivation and forces early

settlement. Where an unconstitutional structure causes an

ongoing injury, federal review prior to completion of the

proceeding is necessary and appropriate. See Gibson v.

Berryhill, 411 U.S. 564 (1973).

The West Virginia Supreme Court of Appeals’

unwillingness to consider these issues before trial only

ensures the likelihood of harm to mass tort defendants like

Petitioners and Amici. As Justice Benjamin ably explained

in dissent, the court’s decision to delay “consideration of

the matters raised herein until an eventual [post-trial]

appeal poses a distinct potential for prejudice to the due

process rights of the petitioners.” Chemtall v. Madden, No.

33380, 2007 WL 4098937 at *5 (W.Va. Nov. 15, 2007)

(Benjamin, J., concurring in part and dissenting in part).

As a practical matter, that prejudice is “not correctable on

appeal.” /d. Under these circumstances, the Court’s failure

to review the unconstitutional procedure “constrains the

effective choices realistically available to the petitioners to

such a degree as to implicate grave due process

considerations.” /d. at n.1. “By failing to confront the issues

raised herein,” Justice Benjamin concluded, the court is

“aequiescing to a system whereby case management

machinations and procedural chicanery rather than

12

substantive law and facts appear to determine the outcome

of the litigation. The right to defend yields to the need to

settle.” Id. (emphasis added).*

The instant petition presents this Court with the

opportunity to correct a growing constitutional problem in

mass tort litigation in the courts of West Virginia. Amici

respectfully suggest that their experience litigating in those

courts confirms the expanding problem and provides

additional compelling reasons for granting the Petition.

Review is warranted now.

s. Cr In re Rhone-Poulenc Rorer. Inc.. 51 3d 1293. 129%

(7th Cir. 1995) (Posner, J.) (recognizing in class action context

that mass aggregation can produce coercive legal “blackmail

settlements”); In re Gen Motors ( orp Pick l p Truck fuel lanl

Prods. Liab. Lit g., 55 B.Sd 76%, 784-85 (4d Cir (“lepalized

biackmail”)

13

CONCLUSION

For the foregoing reasons and for the reasons stated

in the Petition, Amici Curiae request that this Court grant

the Petition for a Writ of Certiorari.

Respectfully submitted,

CHARLES G. COLE

Counsel of Record

SHANNEN W. CorFIN

Mark P FITzsIMMoNns

THERESA ALLYN QUEEN

STEPTOE & JOHNSON L.L.P

1330 Connecticut Ave., NW

Washington, D.C. 20036

(202) 429-3000

Counsel for Amicus Curiae

Ciba Corporation

14

Of Counsel

CARTER G. PHILIPS RoBeRT P MartINn

Eric A. SHUMSKY JUSTIN TAYLOR

SIDLEY AUSTIN LLP BaILEY & WYANT, PLLC

1501 K Street NW PO. Box 3710

Washington, DC 20005 Charleston, WV 25337

Counsel for Amicus Curiae Counsel for Amicus Curiae

G.h. Betz, Inc. Zinkan Enterprises, Inc.

JAMES SPINK HEATHER HEISKELL JONES

ELIZABETH H. MILLER ANDREW ARBOGAST

SPINK & MILLER, PLC SPILMAN, THOMAS & BATTLE

One Lawson Lane PLLC

Burlington, VT 0540) 300 Kanawha Boulevard, East

PQ. Box 273

Counsel for Amicus Curiae .

: Charleston, WV 25321

G.hy. Betz, Ine.

Cou nsel for A THLICUS ( “UA ridge

Rope W. Parryt Cytec Industries Inc

KEVIN CLINI

Hucues, Huppas JERS P BONENBERGEI

Reep, LLP erY A. HOLM

One Battery Park Plaz McDermott & Bont

New York, NY |0004- 14%? VP y,1¢

»s Washineton A rise

Counsel for Amicus | '

Nheeling, V An

15

Davip K. HENDRICKSON

HENDRICKSON & LONG

PO. Box 11070

Charleston, WV 25339

Counsel for Amicus Curiae

G.E. Betz, Inc.

Harry G. SHAFFER, III

SHAFFER AND SHAFFER, PLLC

330 State Street

PO. Box 38

Madison, WV 25130

Counsel for Amicus Curiae

Ciba Corporation

APPENDIX

la

APPENDIX — MEMORANDUM ORDER OF THE

CIRCUIT COURT OF MARSHALL COUNTY,

WEST VIRGINIA DATED JANUARY 9, 2007

RE: STERN, et al. v. CHEMTALL INC., et al.

IN THE CIRCUIT COURT OF MARSHALL COUNTY,

WEST VIRGINIA

Civil Action No. 03-C049M

WILLIAM K. STERN, et al.,

Plaintiffs,

A

CHEMTALL INCORPORATED, et al.,

Defendants.

AND

Civil Action No. 02-C-58

(Boone County Circuit Court)

DENVER PETTRY and DEBRA PETTRY, et al.,

Plaintiffs,

V.

PEABODY HOLDING COMPANY, et al.,

Defendants.

2a

Appendix

MEMORANDUM ORDER

This matter comes before the Court from the West

Virginia Supreme Court of Appeals on a Decision filed

December 2, 2004 which granted the relief sought

through prohibition and vacated the September 26, 2003

Order of this Court certifying a seven-state class action

for medical monitoring and punitive damages arising out

of the alleged exposure of coal preparation plant workers

to acrylamide-containing products. The Supreme Court

of Appeals held that this Court’s analysis in comparing

West Virginia law with the applicable laws of the other

states on strict liability, medical monitoring, disposing

of these matters and protecting the interests of the

parties. Therefore, the issues of liability and punitive

damages will be bifurcated from medical monitoring and

class certification issues.

1. Bifurcation of Liability and Punitive Damages

Multiplier. The first phase of the trial will involve

liability and whether the Defendants’ actions and/or

inactions justify punitive damages, and if so, what

multiple of general damages will be assessed as a

punitive damage multiplier as to each Defendant.

Specifically, the following issues will be tried in the first

phase of the trial.

a. Whether the Defendants, or any of them, had

actual or constructive knowiedge of the hazard posed

by their acrylamide-containing products.

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b. Whether or not the state of the medical,

scientific, and industry knowledge throughout the time

of Plaintiffs’ exposure was such that Defendants, or any

of them, could have reasonably foreseen that persons

working with and around acrylamide-containing were at

risk to sustain injury as a result of exposure to said

products.

c. Whether or not Defendants, or any of them,

failed to properly test their products.

d. Whether or not Defendants, or any of them,

manufactured, processed, sold, and/or distributed

unreasonably dangerous products.

e. Whether or not Defendants, or any of them,

failed to adequately warn the Plaintiffs of the inherent

dangers, if any, in their products.

f. Whether one or more of the Defendants failed

to recommend and/or provide protective devices for use

with its acrylamide-containing products.

g. Whether or not Defendants, or any of them,

failed to provide instructions to foreseeable users of

proper methods of handling of acrylamide-containing

products.

h. Whether or not Defendants, or any of them,

breached any continuing duty to warn Plaintiffs.

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i. Whether or not the acrylamide-containing

products manufactured and sold by the Defendants, or

any of them, were not reasonably safe (strict liability in

tort) as manufactured or marketed.

j. Whether or not the Defendants, or any of

them, acted in such a manner as to justify punitive

damages.

k. If any Defendants’ actions or inactions were

of such a nature as to justify punitive damages, what

multiple of general damages would suffice as a deterrent

of future actions against that particular Defendant.

2. Causation and Damages. Should Plaintiffs

prevail on the issue of liability, the parties will proceed

in the second phase to try the issues of medical causation,

medical monitoring viability, and damages.

3. Timing for Discovery and Pretrial Matters.

The following shall be established and observed as to

discovery and other activity in this matter up through

and including the first phase of the trial by a jury.

a. February 1, 2007: Plaintiffs shall serve a list

of proposed fact witnesses.

b. March 3, 2007: Defendants shall serve a list

of proposed fact witnesses.

c. April 3, 2007: Plaintiffs shall designate all

liability and punitive damages expert witnesses and

provide Rule 26(b) information.

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d. May 5, 2007: Defendants shall designate all

liability and punitive damages expert witnesses and

provide complete Rule 26(b) information as to each

expert designated.

e. September 1, 2007: The parties will exchange

witness and exhibit lists for trial.

f. September 30, 2007: All discovery shall be

completed.

g. October 15, 2007: All dispositive motions,

Daubert/Wilt motions in limine, summary judgment

motions, or other pretrial motions, with supporting

memoranda shall be filed. This provision should not be

construed to prohibit the filing of any dispositive or other

motions at any earlier point in time. In the event of such

filing, responses will be due in the time provided by the

Rules.

h. October 29, 2007: Non-movants shall respond

with supporting memoranda to any dispositive or other

pretrial motions.

i. November 5, 2007: Replies to any such

motions shall be filed.

j. November 15, 2007 at 1:30 p.m.: A hearing on

all dispositive or other pretrial motions will be held, if

appropriate.

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k. November 26, 2007 at 10:00 a.m.: Pretrial

Conference. All parties are directed to exchange and

deliver their respective pre-trial conference memoranda

to the Court’s Marshall County Office, with a courtesy

copy for the Court, no later than seven (7) days

preceding the conference. Said memoranda are to include

at a minimum the following:

(1) Statement of the Case

(2) Issues of Fact

(3) Issues of Law

(4) Proposed Stipulations

(5) List of Witnesses

(6) Pending Motions

At the time of the Pretrial Conference the Court will

determine when exhibits, voir dire questions, jury

instructions, and any remaining motions in limine are

to be filed by the parties.

1. December 3, 2007: First Phase of Trial begins.

4. Modification. In accordance with W.Va.R.Civ.P

16(b), this Memorandum Order shali not be modified

except by leave of the Court.

5. Sanctions. In accordance with W.Va.R.Civ.P.

16(f), the Court will impose the full spectrum of sanctions

authorized by W.Va.R.Civ.P if a party or party’s counsel

fails to obey this Order or other Orders or Rules of this

Court.

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6. Unless authorized by the Court the above dates

are final.

7. Production of Documents. Unless otherwise

agreed, when the parties are required to produce

documents in response to discovery pleadings or for any

other reason, they shall produce copies (via either paper

copies, computer disk or other electronic means) of each

document to all counsel of record, in both matters.

8. Preservation of Documents. During the

pendency of this litigation, until further order of this

Court, the parties shall take reasonable steps to preserve

all documents within their possession, custody or control,

including computer-generated and stored information

and materials such as computerized data and electronic

mail, containing information that is materially relevant

to the subject matter of the pending litigation.

9. Communications Among Counsel. The Court

recognizes that cooperation by and among counsel is

essential for the orderly and expeditious resolution of

this litigation. Accordingly, communications and

information sharing among and between counsel for

Plaintiffs and counsel for Defendants is encouraged, and

shall not be deemed a waiver of the attorney-client

privilege, attorney work-product privilege, or any other

privilege. Any and all joint defense and joint prosecution

agreements, in either Stern or Pettry, are hereby

recognized and approved.

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10. Protective Order. The protective orders

governing production of materials in discovery

previously entered into in either Pettry or Stern are

deemed to be continuing and in effect; parties in these

matters shall seek to add signatories to such agreements

as necessary to allow all parties in either Stern or Pettry

access/use of the material governed by such orders.

It is so ORDERED.

The Clerk shall transmit a copy of this memorandum

order to all counsel of record.

Dated: this 9“ day of January, 2007.

s/ John T. Madden

JOHN T. MADDEN, JUDGE