Opposition Brief — Mobil Corp. v. Adkins

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No. 02-132

Ciees

IN THE

Supreme Court of the United States

MOBIL CORPORATION and

HONEY WELL INTERNATIONAL INC.,

Petitioners,

Vv.

BRUCE W. ADKINS, er a/.,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME CowuRT OF APPEALS OF WEST VIRGINIA

BRIEF OF RESPONDENTS

IN SUPPORT OF PETITIONERS

JAMES T. STENGEL

Counsel of Record

MICHAEL J. LEGG

OrrICK, HERRINGTON

& Sutcuirre LLP

666 Fifth Avenue

New York, NY 10103

(212) 506-5000

Attorneys for Respondents

Union Carbide Corporation

and Amchem Products, Inc

QUESTIONS PRESENTED

1. Whether the Supreme Court of Appeals of West

Virginia erred in holding, contrary to the decisions of other

federal and state courts, that the Due Process Clause of the

Fourteenth Amendment permits the aggregation for a mass

liability trial of thousands of disparate product-liability

claims against hundreds of defendants without any inquiry

into the commonality of those claims or the prejudice that

would result from such an extraordinary undertaking.

2. Whether the Supreme Court of Appeals of West

Virginia erred in holding, contrary to this Court’s decision

in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985),

and in conflict with decisions of other federal and state courts,

that the Due Process Clause permits a state court to apply its

own state law to thousands of product-liability cases,

aggregated for a mass trial, that the court itself has

acknowledged have no connection at all to the state.

CORPORATE DISCLOSURE STATEMENT

Respondent Union Carbide Corporation is wholly owned

by The Dow Chemical Company (“TDCC”). TDCC has no

parent companies, and no other publicly held company owns

10 percent or more of TDCC’s stock.

Respondent Amchem Products, Inc. is no longer a

separate corporate entity. Amchem Products, Inc.’s corporate

successor is Aventis Crop Science USA Inc., which is wholly-

owned by Bayer AG Bayer AG has no parent companies,

and no other publicly held company owns 10 percent or more

of Bayer AG’s stock.

—— eee

ill

TABLE OF CONTENTS

Questions Presented ....-.--.-++esserecrertes

Corporate Disclosure Statement ..-.------+--+>>

Table of Contents ........---s ee eseeccerteee:

Table of Cited Authorities ......------ee sree:

Statement of the Case .....-.--- eee eer rrrre:

The “Mass Trial” Procedure ........----:

Union Carbide and Asbestos .......----->

Ramification of the “Mass Trial” Procedure

for Union Carbide .......-----+eeecere?

Reasons for Granting the Writ ....------ +s 55

The West Virginia Court’s Holding That Mass

Aggregation For Trial Requires No Inquiry

Into Commonality Or Potential Prejudice

Violates Due Process .....-----:++see50?

A. Current Mechanisms for Aggregation

Adopt the Existence of Common Issues

and the Avoidance of Prejudice as Due

Process Touchstones .....-------+°>

B. The Aggregation of Claims Historically

Required the Existence of Common

Issues and the Avoidance of Prejudice ..

Il. The

Contents

West Virginia Court’s Choice-Of-Law

Holding Conflicts With Decisions Of This

Court And Violates Due Process .........

Conclusion

The Application of West Virginia Law

to All Claims Violates Principles of

Federalism and Due Process .........

A Conflict of Laws Does Exist Leading

To a Violation of the Constitutional

Limitations on Choice of Law and

Horizontal Federalism ..............

The Application of Multiple States’

Laws in the Mass Trial Creates Jury

Confusion and Violates Due Process ..

i a i ee, ee oe ee wn ae SY ee ee eee

Page

lt 0h om:

TABLE OF CITED AUTHORITIES

Page

Cases:

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) ... 22

Amchem Products, Inc. v. Windsor, 521 U.S. 591

1) Seer Pepe eT Torr rr Peres 13, 14, 17

Andrews v. Spear, 4 Dill. 470 (D. Minn. 1871) .... 18

Arrington v. City of Fairfield, 414 F.2d 687 (Sth Cir.

eee ee re re rey ee er 13

Barr Rubber Products Co. v. Sun Rubber Co., 425

& Bit ds pe By. Bre ry 12-13

Becker v. Baron Bros. Coliseum Auto Parts, 649 A.2d

OES OED... PON kk ois nc ewes eccdsceseeaneaee 5

Blanton v. Cooper Indus., Inc., 99 F. Supp. 2d 797

CRUD. Tie. FOOD oc occ cvgvccnccus vessenseas 24

BMW of North America, Inc. v. Gore, 517 U.S. 559

CGD 5 i ccc ccd vesskenees sc eeneneree 21

Boddie v. Connecticut, 401 U.S. 371 (1971) ...... 10

Bonaparte v. Tax Court, 104 U.S. 592 (1881) ..... 21

Brierly v. Alusuisse Flexible Packaging, Inc., 184

P30 SZ7 (GGa Cir. 1999) on cn ccncccvcesvveses 24

California v. Ramos, 463 U.S. 992 (1983) ....... 8

Cited Authorities

Capital Holding Corp. v. Bailey, 873 S.W.2d 187

is SR coo ee eee

astano v. Am. Tobacco Co., 84 F.3d 734 (Sth Cir.

IOWGP % éb%kannd satan cee

Celotex Corporation v. Copeland, 471 So. 2d 533

CRUD. TH 60s &o0'sie-s bane tesa kee

Comman v. Insurance Co., 1 Caines, 114, Cole & C.

ee gt re > Pa

Dangler v. Town of Whitestown, 672 N.Y.S.2d 188

CO SRO S TUE sc dbies cus denkeneuaeeaeeen

Eisen v. Carlisle 417 U.S. 156 (1974) ...........

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ......

Fleishman v. Prudential-Bache Securities, Inc., 103

F.R.D. 623 (E.D. Wisc. 1964) .......cccacces

Fryman vy. Electric Steam Radiator Corp., 277

Rw eet Ce...) Bere re yi

Garber v. Randell, 477 F.2d 711 (2d Cir. 1973) ...

General Telephone Co. of Southwest v. Falcon, 457

as SOT CEO 03504441045 400s tee

Georgine v. Amchem Prods., Inc., 83 F.3d 610

CSR CRE BI ois os kics ensue nas ce eee

Page

vil

Cited Authorities

Page

Gideon v. Johns-Manville Sales Corp., 761 F.2d

Sa EE UD nw k accoscuckeseasenenss 5

Gwathmey v. United States, 215 F.2d 148 (Sth Cir.

2 RR rr ee reer yer ree eee 7-8

Hansberry v. Lee, 311 U.S. 32 (1940) ........... 16, 17

Harper v Virginia Dept. of Taxation, 509 U.S. 86

| EEOC E Pe PTO PEC he Fy Te Pee ee 8

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ... 9, 18-19

In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996)

5 indi Skah a a dee ale ae x Sona eae 12

In re Asbestos & Asbestos Insulation Material Prods.

Liability Litig., 431 F. Supp. 906 (J.P.M.L. 1977)

face ees SECRETE TT OCTET TCT CRT Tee

In re Bridgestone/Firestone, Tires Prods. Liab. Litig.

Appeals, 288 F.3d 1012 (7th Cir. 2002) ....... 28, 29

In re Consol. Parlodel Litig., 182 F.R.D. 441

i ME ous a cebu ee Wddese Diwk eek oes 11, 28

In re Fibreboard Corp., 893 F.2d 706 (Sth Cir. 1990)

edhe ood. sin CARN ON ek DAS aaa bbe wes 7

In re Masonite Corp. Hardboard Siding Prods. Liab.

Litig., 170 F.R.D. 417 (E.D. La. 1997) ........ 28

In re Northern Dist, of Cal. Dalkon Shield Prods.

Liab. Litig., 693 F.2d 847 (9th Cir. 1982) ...... 12

vill

Cited Authorities

Johnson v. BP Chemicals, Inc., 707 N.E.2d 1107

Se CED s.d.c 6a Nach vncWecadaunoseneeuses

Johnson vy. Celotex Corp., 899 F.2d 1281 (2d Cir.

PED wdccssdevecercbasscduveetaueesaewess

Perr erry errr rer fr rere Te yy

Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S.

Pe SUUUED 950k bs be sabea eeu teansieeneeee es

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1981)

eo 0 @60 8: 680.4606 97 208202828628 2 68 e 80'S 6.6 8 8 Oe ee 688s eS

Malcolm v. National Gypsum Co., 995 F.2d 346

ee Ge: UE No ce uae vena es cues ceevenees

Mandolidis v Elkins Industries, Inc., 161 W. Va. 695

Pa Se MO aS cwdors sesuew sree sereuseress

Marlin v. Bill Rich Construction, Inc., 482 S.E.2d

re Tk OOD boven ub cinenys cuedswaerds

McKinney v. Fairchild International, Inc., 487 S.E.2d

De ets Wh ED ce cnsnexetuuvencedcageneee

Mutual Life Ins. Co. of New York v. Hillmon, 145

Pas SP CEOUED vc vscecees Lac beaeeek ae has

Page

8, 11

Cited Authorities

Page

New York Life Ins. Co. v. Head, 234 U.S. 149 (1914)

DUS e URN CUN SE ESA REN EOTCN GORA ESO REESE OO 21

Paul v. National Life, 352 S.E.2d 550 (W. Va. 1986)

RA CCSCL UU ESOS UL A RY ERERNa+ekw ek ehkoaees 27

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)

OCP T ETE CLL TERE UTP TEET passim

Ricottilli v. Summersville Memorial Hospital, 425

ke og ere 26

Schad v. Arizona, 501 U.S. 624(1991) .......... )

Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996) .. 26

Smith v. Swormstedt, 57 U.S. 288 (1850) ........ 16

State ex rel. Mobil Corp. v. Gaughan, 563 S.E.2d

Se. We ME a6 0d dic unes b Mea vanseve’ 1,7, 10

Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356

ee ne oe mr ee ee ee ee 16

Thompson v. Shepherd, 9 Johns. 262 (N.Y. 1812) .. 17

Truax v. Corrigan, 257 U.S. 312 (1921) ......... 10

United Mine Workers of Am. v. Gibbs, 383 U.S. 715

2 oes CASA naw she ONS oo 20d ae hie bales a's 12

Vest v. St. Albans Hospital, 387 S.E.2d 282 (W. Va.

Perna s eth sciell ey eh ee ebe 4 860 0-6 00 eae es 27

Cited Authorities

Page

Webb v. Goord, 197 F.R.D. 98 (S.D.N.Y. 2000) ... 12

Wiede v. Ins. Cos., 3 Chi. Leg. N. 353 (D. Minn.

SP on bat os hee oka ca er ee eer ees 18

Windham vy. American Brands, Inc., 565 F.2d 59

SR Eo ho oe awed weCeuke eh ae es 29

Witherlee v. Ins. Co., 24 Pick. 67 (N.Y. 1830) .... 18

Wolff v. A-One Oil, Inc., 627 N.Y.S.2d 788 (2d Dep’t

RE back lth ee Ota a elk 2 Gn a et eee ae at 27

United States Constitution:

I a ale en, Clr 8, 29

Fourteenth Amendment ...................... 1, 8, 29

State Constitutions:

Ohio Constitution Art. 2 § 34 .................. 25

West Virginia Constitution Art.3 §17........... 10

Statutes:

ee RG ere Tree ree eee ee se 24

eh ee. Ss ok oy vc awkee eben bebeee 24

oo a Le eee er 25

Cited Authorities

Page

, Gtk Com 9.) Sen er 13

W. Va. Code § 23-4-2 ae eer eT er ere

Rules:

"he SS ey Seer re eee ae 12

oe ee’ 2: i er rer eee era Trae 13,14

8 ee 3S Sarr rere eee ee 8, 11

Supreme Court Rule 12(6) ......--..--->: Poy: ]

W. Va. Trial Court Rule 26.01 .........-----55- 2,8

Other Authorities:

John S. Baker, Jr., Respecting a State's Tort Law,

While Confining its Reach to that State, 31 Seton

Hall L. Rev. 698 (2001) .........-- ee eee eee 20

Robert G Bone, Personal and Impersonal Litigative

Forms: Reconceiving the History of Adjudicative

Representation, 70 B.U.L. Rev. 213 (1990) .... 17

Marc A. Claybon, Ohio's “Employment Intentional

Tort”: A Workers’ Compensation Exception, or the

Creation of an Entirely New Cause of Action?, 44

Clev. St. L. Rev. 381 (1996) .........-.--eee. 25

Cited Authorities

Page

Deborah R. Hensler, Revisiting the Monster: New

Myths and Realities of Class Action and Other

Large Scale Litigation, 11 Duke J. Comp. & Int’l

i ND ko cn bnceds oes keaeeanen bee 1]

E. Ilgren and E. Chatfield, Coalinga-Fibre — A Short,

Amphibole-Free Chrysotile: Part 1: Evidence For

A Lack Of Fibrogenic Activity, Indoor Built

Environ., 6:264-276 (1997) .............008. 4

E. Ilgren and E. Chatfield, Coalinga Fibre - A Short,

Amphibole-Free Chrysotile: Part 2: Evidence For

A Lack Of Tumourigenic Activity, Indoor Built

Wap ae | a serena ae 4-5

E. Ilgren and E. Chatfield, Coalinga Fibre — A Short,

Amphibole-Free Chrysotile: Part 3: Lack of

Biopersistence, Indoor Built Environ., 7:98-109

CORNED bic sea canker eee 5

Justice Robert H. Jackson, Full Faith and Credit —

The Lawyer's Clause of the Constitution, 45

oe UO | ee rrr er 19, 20

Douglas Laycock, Equal Citizens of Equal and

Territorial States: The Constitutional Foundations

of Choice of Law, 92 Colum. L. Rev. 249 (1992)

Arthur R. Miller & David Crump, Jurisdiction and

Choice of Law in Multistate Class Actions After

Phillips Petroleum Co. v. Shutts, 96 Yale L.J. 1

oh yee rr ee: 20, 21

xiil

Cited Authorities

Page

Martin H. Redish, Procedural Due Process and

Aggregation Devices in Mass Tort Litigation,

63 Def. Couns. J., 18 (1996) .......----++5:- 14

Roger H. Trangsrud, Mass Trials in Mass Tort Cases:

A Dissent, 1989 U. Ill. L .Rev. 69 (1986) ...... 15

Vanderbilt Law Review, Special Project: An Analysis

of the Legal, Social, and Political Issues Raised

by Asbestos Litigation, 36 Vand. L. Rev. 573

UE is cba np paes caren es cenes ccc ee cto eee 5

C. Wright & A. Miller, Federal Practice &

Procedure: Civil (West 2d ed. 1995) .......--. 12

Stephen C. Yeazell, From Group Litigation ~ Class

Action Part I: The Industrialization of Group

Litigation, 27 U.C.L.A. L. Rev. 514 (1980) ....15, 16

Stephen C. Yeazell, From Medieval Group Litigation

to the Modern Class Action, (Yale University

et enn on noo 16

Stephen C. Yeazell, The Past and Future of

Defendant and Settlement Classes in Collective

Litigation, 39 Ariz. L. Rev. 687 (1997) ......-- 15

]

STATEMENT OF THE CASE

Union Carbide Corporation (“Union Carbide”) and

Amchem Products Inc. (“Amchem’”), parties to the decision

below in State ex rel. Mobil Corp. v. Gaughan, 563 S.E.2d 419

(W. Va. 2002) in the Supreme Court of Appeals of West Virginia,

file this Brief in Support of the Petitioners’ petition for a writ of

certiorari pursuant to Supreme Court Rule 12(6). See App. F at

157a and 160a.

The Supreme Court of Appeals of West Virginia in Gaughan

denied the Defendants’ writ of prohibition/mandamus

arising out of the Trial Scheduling Order (“TSO”) dated

February 26, 2002 that created a “Mass Trial”! for the resolution

of approximately 8000 asbestos personal injury claims. See App.

A at 3a.

A petition for a writ of certiorari was docketed by this Court

on July 29, 2002. The Petitioners present two questions for this

Court to consider. In relation to the first question the Petitioners

argue that the consideration of the existence of common issues

and a lack of prejudice is a requirement of due process that

must be satisfied before an aggregation of claims can be

permitted. The focus of Petitioners’ arguments is the case law

surrounding the prerequisites for consolidation. The second

question implicates this Court’s holding in Phillips Petroleum

Co. v. Shutts, 472 U.S. 797 (1985) and the Petitioners argue

that West Virginia cannot apply its law to the current aggregation

of cases because many of those cases have an insufficient

connection to the forum, leading to the violation of the

defendants’ due process rights and principals of federalism.

Union Carbide and Amchem file this Brief in Support for

the purpose of joining in the arguments made by Petitioners in

the petition for a writ of certiorari and for the additional purpose

of arguing:

1. that all forms of aggregation of claims, regardless of

whether such aggregation is referred to as a “consolidation” or

1. The “Mass Trial” case was styled Jn Re: Asbestos Litigation,

Civil Action No. 01-C-9000, Kanawha County.

by some other name, require a threshold inquiry into

commonality and lack of prejudice to satisfy due process; and

2. in the “Mass Trial” context no choice of law analysis

Can pass muster under constitutional principals of due process

because even if the Court applied the law of the numerous states

that had significant contacts to the underlying causes of action,

the trial would be unmanageable and confusing to the jury so as

to violate the defendants’ due process right to be given a

meaningful opportunity to be heard.

The aggregation of asbestos-related cases into a mass trial

in West Virginia simply cannot address the innumerable and

diverse legal and factual issues raised by the approximately 8,000

plaintiffs’ claims, and as a result, violates the due process nights

of Union Carbide and Amchem?.

A. The “Mass Trial” Procedure

The West Virginia Supreme Court enacted Trial Court Rule

26.01 (“Rule 26.01”) in 1999. Rule 26.01 establishes a Mass

Litigation Panel which is charged with the responsibility to

“develop and implement case management and trial

methodologies for mass litigation and to fairly and expeditiously

dispose of civil litigation which may be referred to it by the

Chief Justice.” See App. C at 36a.

On February 26, 2002 Judge Gaughan, as a member of the

Mass Litigation Panel, entered the TSO pursuant to Rule 26.01

which specified a trial date of September 23, 2002. The TSO

sets out a procedure that requires the aggregation of all asbestos-

related cases pending between the parties as of September 6,

2001. See App. B at 24a.

The procedure outlined in the TSO involves two stages:

Stage A — simultaneous mass trials to determine the fault

or liability of defendants based upon whether the cause of action

1S a:

2. Amchem is a party to this Brief in Support and joins in the

arguments made by Union Carbide. The specific facts concerning

Amchem will not be addressed in this brief due to the constraints of

space.

1. product liability claim

2. premises liability claim’

3. claim by an employee against their employer under the

provisions of W. Va. Code § 23-4-2°.

Stage B — mini-trials to determine causation and damages.

See App. B at 25a-29a. Order II.A and A.7.

The juries in stage A will “determine the common issues of

fault.” See App. B at 26a-27a. Order II.A.1, 2 and 3. The Tnal

Order does not specify what those common issues are. The juries

hearing the product and premises liability claims will also

determine if the defendants’ conduct warrants the awarding of

punitive damages. See App. B at 26a. Order II.A.

The TSO proposes to impanel new juries for stage B.

The number of plaintiffs per mini-trial is not specified. How

the plaintiffs will be grouped is explained as “manageable groups

based on causes of action, geographic locations, and similar

exposure criteria.” See App. B at 28a. Order II.A.7. The number

of mini-trials to be held is not specified but the Trial Order

reserves for consideration a “matrix constructed from actual

jury verdicts” as a means for extrapolating those jury verdicts

to plaintiffs not subject to a mini-trial to ensure plaintiffs will

not be denied their right to justice without excessive delay.

See App. B at 28a-29a. Order II.B. and C.

3. This cause of action refers to the liability of the owner of

premises that had asbestos-containing materials in them and with which

the plaintiffs had contact for some business purpose, such as abatement

or the construction of facilities.

4. This cause of action refers to the intentional infliction of harm

exception to a Workers’ Compensation scheme. The exception exists

because certain conduct by an employer towards an employee is beyond

the scope of the employment relationship such that the parties cease to

be employee and employer and become intentional tortfeasor and victim.

At a hearing on August 12, 2002, the Mass Litigation Panel (Judges

Recht, Stephens and Moats presiding) indicated that this part of the

“Mass Trial” would be rescheduled to December 2, 2002.

B. Union Carbide and Asbestos

To allow the Court to see the actual effect of the

‘Mass Trial” this Brief illustrates its arguments through reference

to some of Union Carbide’s involvement with asbestos that is

the subject of the TSO. Union Carbide mined and milled a

unique short form of chrysotile asbestos, known as “Calida”

from about 1963 to 1985. Union Carbide also used non-Calidria

asbestos products manufactured by companies other than Union

Carbide in its chemical plants located in West Virginia, Kentucky

and Ohio that were handled by Union Carbide’s employees as

well as by numerous contractors’ employees.

Union Carbide’s operations have led to claims against it in

all three of the proposed mass trials in Phase A. The mining and

milling activities have led to Union Carbide being named in

product liability suits. The chemical plant operations have

resulted in suits from contractors’ employees based on a premises

liability theory. The statutory “intentional infliction of harm”

exception to Workers’ Compensation schemes has resulted in

suits by Union Carbide employees.

The diverse types of asbestos, uses of asbestos, medical

effects and forms of exposure to asbestos at issue in the case

are aggregated so as to collapse not only the differences that

exist within Union Carbide’s operations, but also the differences

between Union Carbide and the hundreds of other defendants.

(a) Product Liability Claims

“Calidria” asbestos is short grade fiber that was produced

in small volumes and used in a limited number of applications.

Calidria has been used as a filler, reinforcing agent, opacifier,

and thickening agent in such products as drywall patching

compounds, plastics, and paints. At trial Union Carbide would

argue that Calidria’s unique physical characteristics and chemical

composition means that it does not cause asbestos-related

disease. See E. Ilgren and E. Chatfield, Coalinga-Fibre —

A Short, Amphibole-Free Chrysotile: Part 1: Evidence For A

Lack Of Fibrogenic Activity, Indoor Built Environ., 6:264-276

(1997), E. Ilgren and E. Chatfield, Coalinga Fibre — A Short,

Amphibole-Free Chrysotile: Part 2: Evidence For A Lack Of

Tumourigenic Activity, Indoor Built Environ., 7:18-31 (1997);

E. Ilgren and E. Chatfield, Coalinga Fibre — A Short,

Amphibole-Free Chrysotile: Part 3: Lack of Biopersistence,

Indoor Built Environ., 7:98-109 (1998).

The other defendants included in the “Mass Trial” are an

assortment of companies that manufactured a range of dissimilar

products such as gaskets, automotive friction products, mastic

products, cement shingles and boards, pipe insulation, block

insulation, adhesives, joint compounds, and insulation cements.

See generally Special Project: An Analysis of the Legal, Social,

and Political Issues Raised by Asbestos Litigation, 36 Vand.

L. Rev. 573, 578 (1983) (“Today more than three thousand

products commonly found in the home and work environments

contain asbestos.”).

Moreover, the products at issue contained entirely

different types of asbestos fibers such as amosite, crocidolite,

tremolite, tremolite contaminated chrysotile or chrysotile

asbestos, which have significantly different physical

characteristics and thus pose significantly different risks in the

development of human disease. See Gideon v. Johns-Manville

Sales Corp., 761 F.2d 1129, 1145 (Sth Cir. 1985), (“[AJll

asbestos-containing products cannot be lumped together.”’);

accord Celotex Corporation v. Copeland, 471 So.2d 533, 538

(Fla. 1985) and Becker v. Baron Bros. Coliseum Auto Parts,

649 A.2d 613, 621 (N.J. 1994) (“[A]sbestos products are not

made from the same formula, come in various forms and carry

different risks of harm.”) (citations omitted).

(b) Premises Liability and Intentional Infliction of

Harm Claims

Union Carbide operated five plants within West Virginia

and at least two outside of West Virginia that are implicated in

the “Mass Trial”. In West Virginia Union Carbide operated plants

at various different times at South Charleston, Institute, Alloy,

Tech Center and Sistersville. The identified premises outside

of West Virginia were located at Paducah, Kentucky and

Marietta, Ohio. The asbestos products used at each location,

warnings on those products, types and availability of protection,

the historical response to the inclusion and/or removal of

asbestos from the premises, the work conducted and whether it

was conducted by employees or contractors varied. In addition

these factors also varied in comparison with other defendants.

The plaintiffs whose cases are subject to the TSO were

members of a bewildering variety of different trades, that include

boilermakers, insulators, carpenters, iron workers, laborers,

roofers, painters, equipment operators, mechanics, electricians,

cement masons, chemical plant operators, and steelworkers, to

name but a few. Additionally, other plaintiffs make claims based

solely on household exposure. Each plaintiff has a unique claim

regarding asbestos exposure, which allegedly occurred at

different times, in different locations, for different durations

and under different exposure conditions.

Moreover, there are tremendous differences in the asserted

injuries among the plaintiffs. The differences between each of

the plaintiffs is compounded by the fact that many plaintiffs

suffer from medical conditions unrelated to asbestos exposure.

Among those differences are the varying exposure times

recognized by medical science as necessary in order to cause or

contribute to the plaintiffs’ alleged injuries. The cases subject

to the TSO present a variety of medical complaints including

but not limited to asbestosis, in various degrees of severity

ranging from no practical impairment’ to advanced pulmonary

fibrosis; pleural changes only; bronchogenic carcinoma, and

mesothelioma.

C. Ramification of the “Mass Trial” Procedure for

Union Carbide

To ascertain liability of a defendant and the relief, if any, to

which a plaintiff is entitled requires the resolution of the

following issues for each and every case:

5. Based on historical experience in asbestos litigation and the

partially complete Plaintiffs’ Certifications required under the TSO

(see App. B at 30a), Union Carbide believes that many of the thousands

of cases subject to the TSO involve unimpaired plaintiffs with pleural

changes only.

the precise product(s) to which the plaintiff was exposed;

the manner, conditions, and circumstances of each exposure,

the dates, duration and location of each exposure,

the manner in which each alleged asbestos containing

product was used,

* whether there was protective equipment available and

actually used;

* the presence or absence of warnings included with the

specific product(s) at issue;

¢ the injury sustained by the particular plaintiff; and

¢ each plaintiff’s medical, family, and personal history,

including such issues as other causes of the plaintiff's injury

such as use of tobacco products, and other occupational!

exposures to different substances (e.g., benzene, carbon

tetrachloride, coal dust).

See In re Asbestos & Asbestos Insulation Material Prods.

Liability Litig., 431 F. Supp. 906, 909-910 (J.P.M.L. 1977),

In re Fibreboard Corp., 893 F.2d 706, 711-12 (5th Cir. 1990);

and Gaughan, 563 S.E.2d at 428 (Maynard J. concurring).

The TSO’s requirement that juries in stage A will “determine

the common issues of fault” ignores the need to determine the

above issues, disregards the complete lack of common issues

and severely prejudices parties by effectively eliminating the

ability of the defendants to present a defense. By way of example,

Union Carbide is unable to present evidence relating to its unique

product “Calidria” or present evidence about the industrial

hygiene practices it adopted in the Polyolefins Unit at the

Institute Plant in Charleston, West Virginia, without such

evidence being entangled with the cases of the other 100 or so

defendants. Likewise, other defendants’ ability to maintain their

individual defenses is lost in the morass of details that are

necessary to explain corporate, premises and individual job

conduct.

Evidence concerning the alleged knowledge and conduct

of all defendants will be admitted into the mass proceeding,

where it will almost inevitably taint Union Carbide, as well.

See Gwathmey v. United States, 215 F.2d 148, 154 (Sth Cir.

1954) (cumulative effect of evidence against some defendants

prejudices jury against all defendants in consolidated case).

In addition the sheer quantity and complexity of the information

that will be presented is virtually certain to overwhelm the jury,

making it impossible to distinguish one defendant or defense

from another. See Malcolm v. National Gypsum Co., 995 F.2d

346, 352 (2d Cir. 1993) (finding that “sheer breadth of the

evidence” when 48 asbestos cases are consolidated makes it

impossible to prevent jury confusion).

REASONS FOR GRANTING THE WRIT

In the areas of individual nghts and civil liberties, the United

States Constitution, where applicable to the states, provides a

floor below which state court decisions may not fall. State courts

must provide at least as much protection as the United States

Supreme Court has provided in its interpretation of the federal

Bill of Rights. See U.S. Const. 5th and 14th Amendments;

Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 102 (1993);

California v. Ramos, 463 U.S. 992, 1013-1014 (1983). As a

result, West Virginia’s Rule 26.01 and the TSO must be

consistent with the protections of the United States Constitution

to be valid. In this instance the West Virginia court has exerted

its powers to deprive the defendants of their nghts to due process.

_ The Petitioners’ petition for a writ of certiorari convincingly

argues that the due process standards governing the

consolidation of cases should apply to the West Virginia Mass

Tnal procedure under Rule 26.01 and the application of such

standards do not permit the proposed “Mass Tnal.” In addition

to the reasons for granting the writ of certiorari set forth in the

Petitioners’ petition, which Union Carbide and Amchem fully

join, it is also asserted that the writ of certiorari should be granted

because the aggregation of claims, regardless of whether it is

termed a consolidation, is required to conform to the

requirements of commonality and a lack of prejudice.

Indeed as addressed below, aggregation under a class

action, permissive joinder, multi-district consolidation, and

consolidation under Federal Rule of Civil Procedure 42 all

include an examination of commonality and prejudice.

In addition, as demonstrated below, the requirements of

commonality and a lack of prejudice have deep historical roots,

embedded in the judicial milieu that informs how justice is to

be rendered. Indeed, “this Court has stated from its first due

process cases, traditional practice provides a touchstone for

constitutional analysis.” Honda Motor Co. v. Oberg, 512 U.S.

415, 430 (1994); see also Schad v. Arizona, 501 U.S. 624, 650

(1991) (Scalia, J., concurring in part and concurring in the

judgment) (“It is precisely the historical practices that define

what is ‘due’”’) (emphasis in original).

The petition for a writ of certiorari should also be granted

for the reasons advanced by the Petitioners that the West Virginia

Supreme Court of Appeal’s disregard for this Court’s decision

in Shutts, 472 U.S. 797 does violence to the principles of stare

decisis, federalism and due process rights®. As the Shutts decision

prohibits, there is a conflict between the forum law and that of

the other jurisdictions connected to the suit resulting in an injury

to the defendants, and consequently a violation of the

constitutional limitations on choice of law. Jd. at 816.

This Brief in Support addresses the conflict issue through

an examination of the varying laws of the implicated

jurisdictions on the intentional infliction of harm exception to

Workers’ Compensation laws and on the ability of unimpaired

plaintiffs to recover compensation. While demonstrating a clear

conflict in choice of law terms and therefore a violation of due

process, the analysis also starkly highlights the way in which

West Virginia presumptuously disregards the sovereign rights

of other states and the principal of horizontal federalism.

Further, no choice of law analysis can protect due process

rights in the “Mass Trial” because even if the trial court respected

Shutts and applied the law of the states that had significant

contacts, then the laws of the numerous states implicated in the

case will render the trial unmanageable, confusing to the jury

‘and ultimately a violation of the defendants’ due process right

6. At a hearing on August 12, 2002, the Mass Litigation Panel

(Judges Recht, Stephens and Moats presiding), stated that West Virginia

law would be applied to all claims in the “Mass Trial”.

ene neaensnstatetentnans neces dananmnmmeeeenspemmeeie annie ners

to be given a meaningful opportunity to be heard and to mount

a defense.

I. THE WEST VIRGINIA COURT’S HOLDING THAT

MASS AGGREGATION FOR TRIAL REQUIRES NO

INQUIRY INTO COMMONALITY OR POTENTIAL

PREJUDICE VIOLATES DUE PROCESS

The Due Process Clause requires that everyone shall have

the protection of their day in court and the benefit of the general

law, which hears before it condemns and proceeds not arbitrarily,

but upon inquiry, and renders judgment only after trial. Truax v.

Corrigan, 257 U.S. 312, 332 (1921). See also Boddie v.

Connecticut, 401 U.S. 371, 377 (1971) (“persons forced to settle

their claims of night and duty through the judicial process must

be given a meaningful opportunity to be heard. Early in our

jurisprudence, this Court voiced the doctrine that ‘(w)herever

one is assailed in his person or his property, there he may

defend.”’’) (citations omitted). An aggregation of cases dees not

per se violate the requirement of due process. However, any

form of aggregation must honor a party’s right to due process

SO as not to run afoul of the United States Constitution.

Due process is afforded in the aggregation of cases context

by ensuring the existence of common issues and the avoidance

of prejudice. This due process formula may be gleaned from a

review of current mechanisms for aggregation and by reference

to historical practice.

In striking contrast, the Supreme Court of Appeals of West

Virginia’s opinion in Gaughan does not require the trial court

to inquire into the commonality of the aggregated claims or the

possible prejudice to the parties that would result from

aggregation. See App. A at 13a. The tral court is relieved of

these duties because there is a need for “significant flexibility |

and leeway” in dealing with asbestos litigation, as well as the |

“constitutional mandate of administering justice without delay’.”

7. The West Virginia Constitution Art. III § 17 provides

“The courts of this state shall be open, and every person, for an injury done

to him, in his person, property or reputation, shall have remedy by due

course of law; and justice shall be admunistered without sale, denial or delay.”

See App. A at Ila-12a. While efficiency and justice without

delay are important goals they cannot be achieved at the expense

of due process.

A. Current Mechanisms for Aggregation Adopt the

Existence of Common Issues and the Avoidance of

?rejudice as Due Process Touchstones

A court can aggregate claims through various methods, such

as, Class action, permissive joinder, multi-district consolidation,

and consolidation under Federal Rule of Civil Procedure 42

equivalents. See Deborah R. Hensler, Revisiting the Monster:

New Myths and Realities of Class Action and Other Large Scale

Litigation, 11 Duke J. Comp. & Int’! L. 179, 182 (2001) (“{I]n

the United States, there are a variety of devices for pursuing

large-scale litigation.”). Although each method’s goal is to

increase efficiency, every method also requires an inquiry into

_ commonality and prejudice, regardless of whether one claim is

to be joined under permissive joinder or 1000 claims are tu be

certified as a class.

(2) Consolidation

For a consolidation under Fed. R. Civ. P. 42(a), a common

~ question of law or fact shared by all of the cases is a prerequisite.

However, “[c]onsiderations of convenience and economy must

yield to a paramount concer for a fair and impartial trial.”

Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990).

“The benefits of efficiency can never be purchased at the cost

of fairness.” Malcolm, 995 F.2d at 350. In addition courts’

have the discretion to order separate trials to avoid prejudice.

See Fed. R. Civ. P. 42(b). “The court’s power to sever claims

and order separate trials [requires] it to balance the factors of

benefit and prejudice that will result from the alternative

courses.” Garber v. Randell, 477 F.2d 711, 714 (2d Cir. 1973).

Trial courts have conducted the efficiency and prejudice

balancing analysis in considering consolidations and will reject

consolidation where a party’s nights are prejudiced. See Jn re

Consol. Parlodel Litig., 182 F.R.D. 441, 444 (D. N.J. 1998)

(The court must weigh “the interests of judicial economy against

the potential for new delays, expense, confusion, or prejudice.”’)

P-

(citations omitted); Fleishman v. Prudential-Bache Securities,

Inc... 103 F.R.D. 623, 625 (E.D. Wisc. 1984) (Even though there

was clearly acommonality of legal issues, factual dissimilanties

and the “strong possibility of confusing the jurors” cautioned

against trying all of the cases in a single proceeding.); Webb v.

Goord, 197 F.R.D. 98, 101 (S.D.N.Y. 2000) (“Combining into

a single action unrelated incidents involving distinct events and

disparate parties also carries the potential of confusing a jury

and of exposing some defendants to the nsk of liability by loose

institutional association for the unconnected wrongdoing of

others.”’). See also9 C. Wnght & A. Miller, Federal Practice &

Procedure: Civil § 2383 (West 2d ed. 1995).

In general, consolidation has not been favored in the mass

tort context. Consolidation is regarded as unwarranted because:

Individual issues may outnumber common issues.

No single happening or accident occurs to cause

similar types of physical harm or property damage.

No one set of operative facts establishes liability.

No single proximate cause applies equally to each

potential class member and each defendant.

Furthermore, the alleged tortfeasor’s affirmative

defenses (such as failure to follow directions,

assumption of the nsk, contnbutory negligence, and

the statute of limitations) may depend on facts

peculiar to each plainuff’s case.

In re Northern Dist. of Cal. Dalkon Shield Prods. Liab. Litig.,

693 F.2d 847, 853 (9th Cir. 1982). See also In re Am. Med. Sys.,

Inc., 75 F.3d 1069, 1084 (6th Cir. 1996).

(b) Permissive Joinder

Plaintiffs’ cases can be properly joined under Fed. R.

Civ. P. 20(a) if: (1) there is a nght to relief ansing out of the

same transaction or occurrence, and (2) there is a question of

law or fact common to all the plainuffs. But, as with other

aggregation procedures, the two commonality requirements must

be consistent and balanced with fairness to the parties. United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 n.10 (1966)

(superceded on other grounds by statute). See also Barr Rubber

FI FT

eo. foci Rah

Products Co. v. Sun Rubber Co., 425 F.2d 1114, 1126-27

(2d Cir. 1970) (“Rule 20 ... specifically vests in the district

court the discretionary power to make such orders as may be

required to prevent delay or prejudice”); Arrington v. City of

Fairfield, 414 F.2d 687, 693 (Sth Cir. 1969).

Multi-districting is a statutory-based procedure that allows

parties to request the Judicial Panel on Multidistrict Litigation

to collect lawsuits arising out of the same or similar

circumstances that have been filed in different federal courts

and transfer them to a single court for purposes of pretrial

proceedings. See 28 U.S.C. § 1407. The transfer has to serve

the convenience of the parties and witnesses, as well as further

the just and efficient conduct of the litigation. /d. Jn re Asbestos

& Asbestos Insulation Material, 431 F. Supp. 906 rejected the

consolidation of 103 actions based on exposure to asbestos dust

because “the circumstances of exposure are predominantly

individual to each action” and a finding that “transfer would

not necessarily serve the convenience of the parties and witnesses

or promote the just and efficient conduct of the litigation.”

Id. at 909-910. -

(d) Class Actions

Class actions pursuant to Federal Rule of Civil Procedure

23 must satisfy four prerequisites: numerosity, commonality,

typicality and adequate representation. Fed. R. Civ. P. 23(a).

The rule clearly requires commonality but in addition protects

against prejudice through the commonality, typicality and

adequacy of representation requirements.

Many courts have rejected the feasibility of consolidating

asbestos and similar products-liability eases into a Rule 23 class

action. One notable example is Amchem Products, Inc. v.

Windsor, 521 U.S. 591 (1997), upholding an appellate court’s

decision to decertify an asbestos class intended to achieve a

global settlement of current and future asbestos-related claims

nationwide. The Supreme Court cautioned that aggregated

treatment of asbestos cases is improper when “individual stakes

are high and disparities among class members great.” /d. at 625.

In upholding decertification, the Court explained the purpose

behind a number of the class action prerequisites, such as

that “(t]he Rule 23(b)(3) predominance inquiry tests

whether proposed classes are sufficiently cohesive to warrant

adjudication by representation.” /d. at 623. Further,

“(t]he adequacy inquiry under Rule 23(a)(4) serves to uncover

conflicts of interest between named parties and the class they

seek to represent.” /d. at 625. Most importantly for the current

analysis this Court also observed:

The adequacy-of-representation requirement “tends

to merge” with the commonality and typicality

criteria of Rule 23(a), which serve as guideposts for

determining whether ... maintenance of a class

action is economical and whether the named

plaintiff’s claim and the class claims are so

interrelated that the interests of the class members

will be fairly and adequately protected in their

absence.

Id. at 626 n.20 citing General Telephone Co. of Southwest v.

Falcon, 457 U.S. 147, 157, n.13 (1982). See also Amchem,

521 U.S. at 615. where this Court explained that the

predominance and superiority requirements of Rule 23(b)(3)

are intended to achieve efficiencies “without sacrificing

procedural faimess or bringing about other undesirable results.”

The merger of prerequisites identified by this Court exists

because the sine qua non of the adequacy of representation,

commonality and typicality criteria of Rule 23(a) is the ©

avoidance of prejudice. As the class action necessanily involves

absent class members being subject to the res judicata effect of

the Court’s decision, the rules direct attention to ways in which

the avoidance of prejudice can be satisfied — the guideposts.

All of the current forms of aggregation require an inquiry

into commonality and prejudice. To disregard this inquiry is to

dispense a “cattle-car” justice which disenfranchises all parties

and renders inaccurate judgments. See Martin H. Redish,

Procedural Due Process and Aggregation Devices in Mass Tort

Litigation, 63 Def. Couns. J. 18 (1996). Wherever the floor of

acceptable practices to satisfy due process is, the unlimited mass

consolidation given effect by the TSO falls below it. Moreover,

as the inquiry must be conducted at the outset, before the trial is

commenced, it is appropriate for the Court to grant certioran

now.

B. The Aggregation of Claims Historically Required the

Existence of Common Issues and the Avoidance of

Prejudice

Anglo-American judicial systems have long favored

individual control over litigation. Roger H. Trangsrud,

Mass Trials in Mass Tort Cases: A Dissent, 1989 U. Ill. L .Rev.

69, 74 (1986). However, at some point individualized justice

becomes inefficient leading to the observation that “[w]hat group

litigation has been searching for since the late seventeenth

century is an understanding of which cases call for this sort of

inefficiency.” Stephen C. Yeazell, The Past and Future of

Defendant and Settlement Classes in Collective Litigation,

39 Anz. L. Rev. 687, 691 (1997). This question has driven

current and historical analysis of the class action.

The history of group litigation demonstrates that Equity

has always required an assurance of commonality and lack of

prejudice. Stephen C. Yeazell, who has written extensively on

the history of group litigation, asks the question “what cohesion,

transactions, or likenesses will justify one person's representing

another in litigation — [what] will qualify a group as a litigative

entity?” Stephen C. Yeazell, From Group Litigation to Class

Action Part I: The Industrialization of Group Litigation,

27 U.C.L.A. L. Rev. 514, 515 (1980) [hereinafter Yeazell,

From Group Litigation]. According to Yeazell, group litigation

historically required “the actual cohesion of a social group as

its basis, then a looser series of transactions among the members

of the group, and finally only the sharing of some abstractly

defined common interest among the members of the class.” /d.

As the nature of litigation changed with society over the

centuries, the courts had to be satisfied with the existence of

commonality in different ways.

The chancellors of medieval England did not inquire into

issues such as adequate representation, conflict, or binding

adjudication when faced with a possible group litigation

situation. The “groups of group litigation [were] social entities

rather than mere litigative units.” Yeazell, From Group Litigation

at 516. The groups were not formed only for the purpose of

litigation, and the size and geographical proximity of the

members made it possible to obtain actual consent, so that the

chancellors had assurance that commonality would be present

and that there would be a lack of prejudice.

As the ‘natural groupings’ of manorial tenants and

parishioners broke down during the course of the 18th and 19th

centuries they were replaced by associations “that often touched

much narrower portions of their members’ lives.” Yeazell, From

Group Litigation at 523. Commonality and prevention of

prejudice were achieved through an alignment of interests, the

courts sought corgruence between the represented parties’

interests and those of the representative as the guarantee for

effective representation. /d. at 522 and 550-552.

Group litigation emigrated to America in the 1820’s.

Although the doctrinal underpinnings of the early class action

were unclear, the Supreme Court in Smith v. Swormstedt,

- §7 U.S. 288 (1850) observed that “care must be taken that

persons are brought on the record fairly representing the interest

or right involved” and that where the subject matter of the suit

is common to the parties then their interests will be protected.

Id. at 303. An approach which was followed in Supreme Tribe

of Ben-Hur v. Cauble, 255 U.S. 356, 363 (1921). See Stephen

C. Yeazell, From Medieval Group Litigation to the Modern Class

Action, 221-222 and 225-226 (Yale University Press 1987).

The requirement of an alignment of interests between the

representative and the absent. parties was “constitutionalized”

in the Supreme Court’s decision in Hansberry v. Lee, 311 U.S.

32 (1940), that held that adequate representation of interests

was necessary to meet constitutional due process requirements

for binding nonparties. Jd. at 45. See also Robert G. Bone,

Personal and Impersonal Litigative Forms: Reconceiving the

History of Adjudicative Representation, 70 B.U.L. Rev. 213,

225 (1990).

The historical development of group litigation demonstrates

that prejudice was avoided firstly through consent and then

througn an alignment of interests which today’s lawyers know

as adequacy of representation. Aggregation of cases through

joinder and consolidation achieve due process through

references to avoiding prejudice and achieving fairness.

The moder class action adopts a more refined approach to due

process by providing guidance on how prejudice is eliminated

through requirements such as notice, (Eisen v. Carlisle, 417 U.S.

156, 174-175 (1974)), the right to opt-out (Shutts, 472 U.S.

at 812*) and adequate representation (Hansberry, 311 U.S. at

42-43 and Amchem as explained above).

The history of consolidation seems to be somewhat briefer

than that for the class action. Justice Gray found the roots of

“the consolidation rule” in England where Lord Mansfield

devised the practice of allowing the trial of a multiplicity of

actions upon the same question under different policies of

insurance. Where those prerequisites were present all but one

of the trials were stayed, with the several insurers bound by the

verdict in that trial. See Mutual Life Ins. Co. of New York v.

Hillmon, 145 U.S. 285, 292-293 (1892). The English practice

was followed in New York until a statute governing

consolidations was passed. See Comman v. Insurance Co.,

1 Caines, 114, Cole & C. Cas. 188 (N.Y. 1803); Thompson v.

Shepherd, 9 Johns. 262 (N.Y. 1812). In other American courts a

consolidation was achieved through ordering several actions

by one plaintiff against different defendants to be tried together

whenever the defense was the same, and unnecessary delay and

expense would be avoided. See Hillmon, 145 U.S. at 292-293

8. The Supreme Court’s decision was limited to “those class

actions which seek to bind known plaintiffs concerning claims

wholly or predominantly for money judgments.” See Shutts, 472 U.S. at

812 n.3.

(citing Witherlee v. Ins. Co., 24 Pick. 67 (N.Y. 1830); Wiede v.

Ins. Cos., 3 Chi. Leg. N. 353 (D. Minn. 1871); Andrews v. Spear,

4 Dill. 470 (D. Minn. 1871); and Keep v. R.R., 3 McCrarv 302,

10 F. 454 (D. Mo. 1882)).

Justice Gray then explained “no defendant could be

deprived, without its consent, of any right material to its

defense.” See Hillmon, 145 U.S. at 293. In Hillmon the

defendants were denied there right to individually have three

peremptory jury challenges as provided by statute so that they

were entitled to a new tnal.

In Johnson v. Manhattan Ry. Co., 289 U.S. 479 (1933).

Hillmon was followed in setting out the following rule

“consolidation is permitted as a matter of convenience and

economy in administration, but does not . . . change the rights

of the parties.” /d. at 496- 497.

The historical analysis of consolidation above demonstrates

that there must be commonality which was predicated on the

existence of the ‘same defense’ or ‘same question’, and the

parties must not be prejudiced, that is, their nghts may not be

deprived or changed as a result of the consolidation.

The courts in conducting class actions and consolidations

have not done so purely out of convenience and economy.

Efficiency was achieved by, and balanced with, an inquiry into

the commonality of the claims and the potential for prejudice.

The ‘Mass Trial” has been approved by the West Virginia

Supreme Court of Appeals without an inquiry which courts have

routinely conducted for centuries. The TSO robs the defendants

of the ability to adequately and meaningfully present their case

so as to raise available defenses. This denial occurs because the

TSO subsumes the numerous factors upon which one plaintiff's

claim may differ from another plaintiff's claim thus ignoring

the existence of a complex factual matrix with interlocking and

dependent issues.

This Court has stated that “When the absent [common law]

procedures would have provided protection against arbitrary

and inaccurate adjudication, this Court has not hesitated to find

the proceedings violative of due process.” Oberg, 512 US. at

430. The petition for certiorari should be granted to ensure the

protection of the parties’ long Standing historical rights and

prevent the violation of due process through capricious

adjudication.

II. THE WEST VIRGINIA COURT’S CHOICE-OF -LAW

HOLDING CONFLICTS WITH DECISIONS OF

THIS COURT AND VIOLATES DUE PROCESS

The Supreme Court of Appeals of West Virginia’s decision

on the substantive law to be applied in the “Mass Trial” can be

interpreted in one of two ways: either the triai court should

apply West Virginia law to all claims or the trial court should

apply West Virginia choice of law rules®. See App. A at 7a and

21a-22a. Either reading suffers from an inherent constitutional

infirmity.

The first approach violates this Court’s decision in Shutts,

which includes principles of federalism and due process.

The second reading involves the application of the doctrine of

lex loci delicti so that numerous other states’ laws must be

applied leading to inevitable jury confusion and the violation

of the defendants’ due process nght to be given a meaningful

Opportunity to be heard and to mount a defense. In the

“Mass Trial” context no choice of law analysis can pass muster

under constitutional principals of due process.

A. The Application of West Virginia Law to All Claims

Violates Principles of Federalism and Due Process

The Supreme Court of Appeals of West Virginia's decision

allowing the trial court to apply West Virginia law to all claims

violates Shutts, due process, and horizontal federalism.

Choice of law in the United States is inherently

constitutional law. Douglas Laycock, Equal Citizens of Equal

and Territorial States: The Constitutional Foundations of

Choice of Law, 92 Colum. L. Rev. 249, 250 (1992) (citing Justice

Robert H. Jackson, Full Faith and Credit — The Lawyer's

Clause of the Constitution, 45 Colum. L. Rev. 1, 2, 6-7 (1945)).

Choice of law questions are concerned with the allocation of

authonty among the several states. /d. The allocation of authority

among the several states inevitably causes federalism questions

to arise. John S. Baker, Jr., Respecting a State s Tort Law, While

Confining its Reach to that State, 31 Seton Hall L. Rev. 698,

706 (2001). Federalism has two dimensions, one vertical and

one honzontal. /d. Vertical federalism refers to the conflict and

relationship between state law and federal law. Horizontal

federalism involves the relationships between and among the

several states. /d. Various constitutional provisions seek to

protect honzontal federalism — the Privileges and Immunities

Clause, the Full Faith and Credit Clause, and the Extradition

Clause. /d. .

In Shutts this Court recognized the importance of horizontal

federalism to choice of law when the Court held that the

application of Kansas law to every claim in a class action suit

where almost all the plaintiffs had no apparent connection to

Kansas was “sufficiently arbitrary and unfair as to exceed

constitutional limits.” Shutts, 472 U.S. at 822. The Court stated

that the constitutional limits on choice of law are not “altered

by the fact that it may be more difficult or more burdensome to

comply with the constitutional limitations because of the large

number of transactions which the state proposes to adjudicate

and which have little connection with the forum.” /d. at 821.

West Virginia's decision to do otherwise and apply its own law

to every claim in the present matter regardless of the connection

to West Virginia violates such constitutional limitations and

threatens honzontal federalism.

The Shuits decision is an attempt to prevent forum shopping

and interference with other states’ sovereigniy. Without Shutts,

a state with an insubstantial interest in a dispute can bind the

nation, unfairly resolving controversial issues for the rest of the

nation. Arthur R. Miller & David Crump, Jurisdiction and

Choice of Law in Multistate Ciass Actions After Phillips

Petroleum Co. v. Shutts, 96 Yale L.J. 1, 57-59 (1986) [hereinafter

Miller & Crump, Jurisdiction and Choice of Law}. This Court

has consistently recognized the importance of preventing one

state from imposing its own policy choice on neighboring states.

BMW of North America, Inc. y, Gore, 517 U.S. 559, 571-572

(1996). See also Bonaparte v. Tax Court, 104 U.S. 592, 594

(1881) (“No State can legislate except with reference to its own

jurisdiction . .. Each State is independent of all the others in

this particular.”); New York Life Ins. Co. v. Head, 234 U.S. 149,

161 (1914).

The invasion of a state’s sovereignty may arise from another

State's legislation, federal legislation, a federal court, or another

State’s court. See, e.g., Klaxon Co. v. Stentor Electric Mfg. Co.,

313 U.S. 487, 496 (1941) (“lack of uniformity . . . is attributable

to our federal system, .. . [and a State’s] mght to pursue local

policies diverging from those of its neighbors. It is not for the

federal courts to thwart such local policies by enforcing an

independent “general law”.”) In this case, it is the West Virginia

court rather than a federal court that is threatening to thwart the

local policies of numerous states, but that difference is irrelevant

for purposes of protecting federalism.

Shutts attempts to prevent forum shopping on the horizontal

federalism level.° Shutts’ efforts will be seriously undermined

if the West Virginia court is allowed to apply its state’s law to

all claims, regardless of the interest of the state in such

claims. See Miller & Crump, Jurisdiction and Choice of Law,

at 62 n.426 (“Given the jurisdictional holding of Shutts, choice

of law is the principal protection of interstate federalism.”).

From a due process perspective, for a state’s substantive

law to be selected in a constitutionally permissible manner, that

State must have a significant contact or significant aggregation

of contacts, creating state interests, such that choice of its law

is neither arbitrary nor fundamentally unfair. Shutts, 472 U.S.

9. This Court's decisions in the seminal cases Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938) and Klaxon Co., 313 U.S. 487 were

designed to prevent forum shopping by plaintiffs on a vertical federalism

level.

at 818 (citing Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-313

(1981)).

The West Virginia Supreme Court has acknowledged the

existence of no connection between as many as five thousand

plaintiffs and West Virginia. See App. A at 21 a-22a (Maynard J.

concurring). The West Virginia Supreme Court’s failure to

engage in a “significant contacts” analysis means that Union

Carbide is now required to defend cases arising from actions

occurring at premises in, and subject to the laws of, Kentucky

and Ohio, under the different laws of West Virginia.

In Shutts this Court stated that “[w]hen considering fairness

in this context, an important element is the expectation of the

parties.” Shutts, 472 U.S. at 822. When Union Carbide operated

its premises in Paducah, Kentucky and Marietta, Ohio it did so

pursuant to the laws of those states, including the Workers’

Compensation laws. It is fundamentally unfair that actions taken

by Union Carbide in reliance upon the law governing it are now

to be disregarded and Union Carbide’s actions are to be judged

against the differing standards of West Virginia law. Examples

of those differing standards are set out below.

West Virginia cannot be allowed to impose its law, in

violation of SAutts, on all of the plaintiffs’ claims because such

an imposition would be fundamentally unfair and violate both

the due process rights of the parties to this litigation and the

sovereignty of the various other states with direct interests in

the pending action.

B. AConflict of Laws Does Exist Leading To a Violation

of the Constitutional Limitatiens on Choice of Law

and Horizontal Federalism

The Shutts decision requires that there be a conflict between

the forum law and that of the other jurisdictions connected to

the suit for there to be an injury, and consequently a violation of

the constitutional limitations on choice of law. /d. at 816.

The plaintiffs have commenced actions in West Virginia

where the place of the alleged tort was Ohio, Pennsylvania,

Kentucky, Virginia, Indiana, or New York, to name the most

prevalent non-West Virginia locations. A review of those

States’ laws on the “deliberate intent” exception to Workers’

Compensation and unimpaired plaintiffs demonstrates. that the

applicable substantive laws vary widely and lead to vastly

different outcomes.

(a) “Deliberate Intent” Exception to Statutory

Scheme of Workers’ Compensation

The different ways in which the “deliberate intent”

exception operates across states can be illustrated by focusing

on the three states where Union Carbide operated facilities and

employed people to run those facilities, West Virginia, Ohio

and Kentucky

The TSO envisages only applying West Virginia law

to “deliberate intent” exception causes of actions. See App. A

at 7a and App. B at 25a referring to the third trial group being

for claims under W. Va. Code § 23-4-2. West Virginia law allows

an employee to pursue compensation under the Workers’

Compensation scheme and to also bring an action pursuant

to the deliberate intent exception. W. Va. Code § 23-4-2(b).

West Virginia law provides two alternative tests that an employee

in West Virginia can meet to demonstrate his employer’s

“deliberate intent” to injure him and so strip the employer of

statutory immunity from a tort suit'®. The statutory tests are:

1. The injured employee shows that his employer “acted

with a consciously, subjectively and deliberately formed

intention to produce the specific result of injury’ — merely

willful, wanton or reckless misconduct will not suffice (W. Va.

Code § 23-4-2(c)(2)(i)); or

10. West Virginia enacted the statutory definition of “deliberate

intent” in 1983 to override the West Virginia Supreme Court’s decision

in Mandolidis v Elkins Industries, Inc., 161 W.Va. 695 (W. Va. 1978).

Mandolidis liberalized what had previously been a narrow construction

of deliberate intent. As a result, even applying only West Virginia law,

a jury will need to be instructed on different standards of ‘deliberate

intent’ depending upon when the plaintiff was exposed to asbestos.

2. The injured employee satisfies a fact-specific five-part

test to demonstrate an unsafe working condition to establish

his employer’s deliberate intent to injure, by proving:

1. existence of a specific unsafe working condition

presenting a high degree of risk and serious injury or

death;

2. that the employer had a subjective realization of the

existence of the unsafe working condition and of the

high degree of risk and serious injury or death;

3. that the unsafe working condition was a violation of

a state or federal safety statute, rule or regulation, or

of a commonly accepted and well-known safety

standard within the industry or business of such

employer;

4. that the employer nevertheless exposed the employee

to such specific unsafe working condition

intentionally; and

5. the employee suffered serious injury or death as a

direct and proximate result of such specific unsafe

working condition. (W. Va. Code § 23-4-2(c)(2)(1i)).

In contrast, Kentucky adopts the position that an injured

employee must elect between his remedies; “if he chooses to

sue... he waives any recovery under the workers’ compensation

laws and if he chooses to make a claim under the workers’

compensation laws, he waives his cause of action at common

law.” Blanton v. Cooper Indus., Inc., 99 F. Supp. 2d 797, 803-

“804 (E.D. Ky. 2000) and Ky. Rev. Stat. § 342.610(4). The only

exception to the election requirement is where the injury or death

results from “willful and unprovoked physical aggression” by

an employee, officer or director. Ky. Rev. Stat. § 342.690(1).

Further Kentucky law defines deliberate intent as “the employer

must have determined to injure an employee and used some

means appropriate to that end, and there must be a specific

intent.” Fryman v. Electric Steam Radiator Corp., 277 S.W.2d

25, 27 (Ky. 1955) and applied in Brierly v. Alusuisse Flexible

Packaging, Inc., 184 F.3d 527, 535-536 (6th Cir. 1999).

A comparison of Kentucky and West Virginia law quickly

reveals that they differ as to the need to elect between remedies

and that West Virginia’s five-part test provides an additional

avenue for plaintiffs to recover that does not exist in Kentucky.

The impact on a Kentucky premises owner such as Union

Carbide is that while it believed it had dealt with its liability to

employees who had accepted compensation under the Kentucky

statute, it now finds that those workers by filing their actions in

West Virginia have evaded Kentucky’s legislative mandate and

are seeking further compensation.

The egregious nature of West Virginia’s attempts to override

the sovereignty of other states is starkly illustrated by a

comparison with Ohio. Former Ohio Rev. Code § 2745.01

purported to replace the common law cause of action for

intentional employer tort in Ohio with a statutory scheme that

required proof by “clear and convincing evidence that the

employer deliberately committed all of the elements of an

employment intentional tort.” However, the Ohio Supreme Court

invalidated § 2745.01 as in violation of the Ohio Constitution

Art. 2 § 34". Johnson v. BP Chemicals, Inc., 707 N.E.2d 1107,

1115 (Ohio 1999). The Ohio Supreme Court’s decision is part

of a larger struggle between the Ohio legislature and judiciary

as to what standards of conduct and proof are constitutionally

permissible in the area of the “deliberate intent” exception to

Ohio’s Workers’ Compensation scheme. See Marc A. Claybon,

Ohio's “Employment Intentional Tort ”: A Workers’

Compensation Exception, or the Creation of an Entirely New

Cause of Action?, 44 Clev. St. L. Rev. 381 (1996). Ohio’s

ongoing debate is of central importance to how Ohio wishes to

govern an important aspect of its citizens’ rights. West Virginia’s

“Mass Trial” makes no attempt to accommodate other states’

“deliberate intent” exception laws so that it undermines the

11. Ohio Constitution Art. 2 § 34 provides: “Laws may be passed

fixing and regulating the hours of labor, establishing a minimum wage,

and providing for the comfort, health, safety and general welfare of all

employees; and no other provision of the constitution shall impair or

limit this power.”

important requirement of horizontal federalism that is intrinsic

to the operation of the United States’ form of government. In

relation to Ohio, not only are its laws being disregarded, but the

interpretation of its Constitution is being ignored. The ongoing

debate in Ohio is rendered moot by West Virginia allowing Ohio

citizens who worked at an Ohio plant to bring action in West

Virginia Courts that will solely apply West Virginia law.

(b) Unimpaired Plaintiffs

In West Virginia “an individual may recover for the

negligent infliction of emotional distress absent accompanying

physical injury upon a showing of facts sufficient to guarantee

that the emotional damages claim is not spurious.” See Marlin

v. Bill Rich Construction, Inc., 482 S.E.2d 620, 637 (W. Va.

1996) (citing Ricottilli v. Summersville Memorial Hospital,

425 S.E.2d 629, 630 (W. Va. 1992)). In order to ensure the

emotional distress is “real and serious”, the plaintiff has to

prove that he or she was actually exposed to the disease by the

negligent conduct of the defendant, the plaintiff’s emotional

distress is foreseeable, and the plaintiff actually suffered

serious emotional distress as a direct result of the exposure.

Marlin, 482 S.E.2d at 638.

In direct contrast, other states either do not allow recovery

to unimpaired plaintiffs, such as Pennsylvania and Kentucky,

or allow recovery but apply a different test, such as New York.

In Pennsylvania the law is set out in Simmons v. Pacor,

Inc., 674 A.2d 232 (Pa. 1996), where all of the plaintiffs suffered

from asbestos-related pleural thickening (the scarring of lung

tissue). Jd. at 236. The plaintiffs sought recovery for, inter alia,

increased risk of cancer, fear of cancer, and mental anguish.

Id. at 235. The Pennsylvania court held that asymptomatic

pleural thickening is not a compensable injury that gives rise to

a cause of action. Jd. at 237. The general rule is that there can

be no recovery for emotional distress absent physical injury or

physical impact, and pleural thickening is not a sufficient impact.

Id. at 238.

In Kentucky, mere exposure to a toxic substance does not

constitute sufficient physical harm to base a claim for damages.

Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 195 (Ky.

1994). Kentucky law requires a tangible injury to trigger the

existence of a cause of action. Jd. at 194. The fear of cancer

cause of action would not accrue until the plaintiff had suffered

a “harmful change.” Jd. at 193.

In New York, plaintiffs can maintain an action for

“cancerphobia”, but it requires different elements to be proved

than under West Virginia law. Under New York law the plaintiff

can recover if they can establish that they were in fact exposed

to the disease-causing agent and that there is a ‘rational basis’

for the fear of contracting the disease. Wolff v. A-One Oil, Inc.,

627 N.Y.S.2d 788, 789 (2d Dep’t 1995); Dangler v. Town of

Whitestown, 672 N.Y.S.2d 188, 190 (4th Dep’t 1998). In New

York the rational basis is achieved through demonstrating a

clinical presence of asbestos fibers in the lungs, or some

indication of an asbestos-induced disease. Wolff, 627 N.Y.S.2d

at 789. While New York and West Virginia both require proof

of exposure, New York then looks for the physical presence of

asbestos as compared to West Virginia law which focuses on

the suffering of serious emotional distress as a direct result of

‘he exposure.

The law on unimpaired plaintiffs is controversial because

of the difficulty in proving harm and the high likelihood of

sham claims. In the area of asbestos litigation the controversy

is heightened because unimpaired claimants recovery of

damages reduces the funds available for truly sick claimants.

West Virginia’s application of only its law means that

it is imposing its method of resolving the controversy on all

other states.

C. The Application of Multiple States’ Laws in the Mass

Trial Creates Jury Confusion and Violates Due

Process

Under normal circumstances West Virginia recognizes the

doctrine of lex loci delicti (“place of the wrong”) . Vest v. St.

Albans Hospital, 387 S.E.2d 282, 283 (W. Va. 1989); Paul v.

National Life, 352 S.E.2d 550, 555 (W. Va. 1986). Pursuant to

this doctrine, “the substantive rights between‘the parties are

determined by the law of the place of the injury.” McKinney v.

Fairchild International, Inc., 487 S.E.2d 913, 924 (W. Va. 1997).

If the West Virginia court applies the /ex loci delicti doctrine

correctly, the jury will be hopelessly confused and the procedure

will violate due process. Variations among the applicable states’

laws would exacerbate the multiplicity of issues to be determined

during each phase of the trial and make the mass trial format all

the more impracticable. In case after case, courts in mass tort

actions involving plaintiffs from multiple states have held that

(a) state tort laws differ materially on a wide range of issues,

(b) such differences result in a lack of common issues, and

unmanageable and unfair. See, e.g., Castano v. Am. Tobacco

Co., 84 F.3d 734, 741-743 (Sth Cir. 1996) (“[p]roducts liability

law also differs among states,” including the standards for strict

liability and affirmative defenses); Georgine v. Amchem Prods.,

Inc., 83 F.3d 610, 627 (3d Cir. 1996) (“[t}he states have different

rules governing the whole range of issues raised by the plaintiffs’

[asbestos personal injury] claims”), aff'd sub nom. Amchem

Prods., Inc. v. Windsor, 521 U.S. 591 (1997); In re Masonite

Corp. Hardboard Siding Prods. Liab. Litig., 170 F.R.D. 417,

423-424 (E.D. La. 1997) (varying state law jury instructions

for strict liability product defect claims “could not possibly be

given to the same jury”); Jn re Consol. Parlodel Litig.,

182 F.R.D. at 447 (finding that the prospect of applying the

different laws of each of the relevant states to consolidated

claims would “create a nightmare of jury confusion which would

be prejudicial to [the parties]’”).

The application of solely West Virginia law is impermissible

in an aggregation involving injuries that took place all over the

country. Differences in state laws may be costly and increase

complexity, “but they are a fundamental aspect of our federal

republic and must not be overridden in a quest to clear the queue

in court.” Jn re Bridgestone/Firestone, Tires Prods. Liab. Litig.

Appeals, 288 F.3d 1012, 1020 (7th Cir. 2002). In Bridgestone/

Firestone the plaintiffs obtained certification of nationwide

class actions and sought to apply a single state’s law (place of

defendants’ headquarters) to the cases from all 50 states. Id. at

1015-16. The Seventh Circuit decertified the class because

Indiana, the state where the Federal Court sat, is alex loci delicti

state and thus selects the law of the place where the harm

(physical or financial) occurred. Jd. at 1016. The Seventh

Circuit found not only that applying a single state’s law violated

due process and federalism, but also that “adjudication

under the law of so many jurisdictions . . . is not manageable.” _

Id. at 1018, 1020.

Due process guarantees parties the right to present

their case at a meaningful time and in a meaningful manner.

See U.S. Const. 5th and 14th Amendments, Logan v.

Zimmerman Brush Co., 455 U.S. 422, 429 (1981); Windham v.

American Brands, Inc., 565 F.2d. 59 (4th Cir. 1977), cert. denied,

435 U.S. 968 (1978). The confusion created by requiring a jury

to apply numerous different state laws in one proceeding

deprives all parties of their right to present their cases in a

meaningful manner.

The reasoning in Bridgestone/Firestone applies equally to

the “Mass Trial” of asbestos cases. If the trial court adopts only

West Virginia law to simplify the trial, it violates the due process

and federalism requirements of the United States Constitution,

and if it seeks to apply the laws of the numerous states implicated

in the case the trial will be unmanageable, confusing to the jury

and ultimately a violation of due process. Therefore, West

Virginia’s attempt to aggregate thousands of disparate claims is

inappropriate because in any conceivable form it violates the

due process requirements of the United States Constitution.

CONCLUSION

For the foregoing reasons, the petition for a wnt of certiorari

should be granted.

Respectfully submitted,

JAMES T. STENGEL

Counsel of Record

MICHAEL J. LEGG

OrRICK, HERRINGTON & SUTCLIFFE LLP

666 Fifth Avenue

New York, NY 10103

(212) 506-5000

Attorneys for Respondents

Union Carbide Corporation and

Amchem Products, Inc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.