Opposition Brief — Mobil Corp. v. Adkins

No. 02-132

IN THE

Supreme Court of the Gnited States

MOBIL CORPORATION and

HONEYWELL INTERNATIONAL, INC.,

Petitioners.

Vv.

BRUCE W. ATKINS, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Appeals

of West Virginia

BRIEF IN OPPOSITION

CHRISTOPHER J. WRIGHT *

TIMOTHY J. SIMEONE

HARRIS, WILTSHIRE & GRANNIS LLP

1200 Eighteenth Street, N.W.

Washington, D.C. 20036

* Counsel of Record (202) 730-1300

Additional Counsel listed on inside cover

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

JAMES F. HUMPHREYS

J. DAVID CECIL

JAMES A. MCKOWEN

JAMES F. HUMPHREYS

& ASSOCIATES, LC

United Center, Suite 800

500 Virginia Street, East

Charleston, WV 25301

(304) 347-5050

JOHN E. SUTTER

THE SUTTER LAW FIRM

1598 Kanawha Blvd., E.

Charleston, WV 25311

(304) 343-1514

JOHN SKAGGS

LAW OFFICES OF

STUART CALDWELL

405 Capitol Street, Suite 607

Charleston, WV 25301

(304) 343-4323

WILLIAM K. SCHWARTZ

HARVIT & SCHWARTZ, LC

2018 Kanawha Boulevard, East

Charleston, WV 25311

(304) 343-3100

SCOTT S. SEGAL

SEGAL LAW FIRM |

810 Kanawha Boulevard, East

Charleston, WV 25301

(304) 344-9100

RONALD MOTLEY

ANNE MCGINNESS KEARSE

LAW OFFICES OF

NESS MOTLEY, P.A.

28 Bridgeside Boulevard

Mount Pleasant, SC 29465

(843) 216-9000

THEODORE GOLDBERG

DAVID B. RODES

GOLDBERG, PERSKY, JENNINGS

& WHITE, PC

1030 Fifth Avenue

Pittsburgh, PA 15219

(412) 338-9425

TABLE OF CONTENTS

Page

STATEMENT OF THE CAGE ..............csssssessssesseceeeee |

REASONS FOR DENYING THE WRIT .........:eeeeeeees 12

I. THE INTERLOCUTORY DECISION OF

THE STATE SUPREME COURT IS NOT A

REVIEWABLE “FINAL JUDGMENT.”......... 12

Il. THE FIRST QUESTION PRESENTED

DOES NOT WARRANT REVIEW. ..........::000 16

A. The State Supreme Court Did Not Hold

That Thousands Of Claims Could Be

“Ageregated For A Mass Liability Trial”

Without “Any Inquiry Into The Com-

monality Of Those Claims Or The

Prejudice That Would Result From Such

An Extraordinary Undertaking.’ .............+. 16

B. Petitioners Will Be Entitled To Seek

Review Of Their Claim That A “Com-

mon Issues” Trial Violated Their Due

Process Rights When The Facts Neces-

sary To Rule On That Issue Have Been

Eo iiasésscvevnsaxsscdsarsnasavernenepoereinnioes 19

C. The West Virginia Courts’ Preliminary

Plan To Employ “Common Issues” Trials

Followed By Small-Group Trials On

Remaining Issues Is Entirely Consistent

With The Federal Circuit Court And

State Intermediate Appellate Court Cases

Cited By Petitioners............cssesseesresereseees 21

Il. THE SECOND QUESTION PRESENTED

DOES NOT WARRANT REVIEW. ............:00++ 25

(i)

li

TABLE OF CONTENTS—Continued

Page

A. The Supreme Court Of West Virginia

Did Not Hold That The “Due Process

Clause Permits A State Court To Apply

Its Own State Law” To Cases That “Have

No Connection At All To The State.” ....... 25

B. The “Choice Of Law” Cases Cited By

Petitioners Are Irrelevant. ...................ce000 27

ee crsesessesenninssnvaviesmonpensscatsoenenesiiiennisusinenestete 30

iil

TABLE OF AUTHORITIES

FEDERAL CASES Page

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

€ TSF F } +ccsiscesnsnsnediesiesionsieniniaieinieniannallliniiainaameninaas 2, 16

Board of Education v. Superior Court, 448 U.S.

BPS CPE) vnsnceessnnsenconneneeneanenstnaauidaaaaadanl 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

CEFF i sassncestrecssvendincesesininiinestniegpiagtaanniaaaamaalaias 15

Fisher v. District Court, 424 U.S. 382 (1976)....... 14

Garber v. Randell, 477 F.2d 711 (2d Cir. 1973)... 21

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

Ot. FSG) «cacisenissccnnctaniiantnaetiaeiemdiamiaaeals 23, 24

In re Bridgestone/Firestone, Inc., 288 F.3d 1012

(FR CD, DR Piccsscassinenssnstshiiantntnsatiiniiaamaniaaaines 29

In re Chevron U.S.A., Inc., 109 F.3d 1016 (Sth

Oy. BIZ ) sssseveteersetetemncsoninaiaaeenaaaainans ys Bs

In re: Federal-Mogul Global, Inc., 2002 U.S.

App. LEXIS 15331 (3d Cir. Jul. 31, 2002)........ 4

Jefferson v. City of Tarrant, 522 U.S. 75

( F977) .<covinccsnissaccenbannentincabedeansiniaaeiaiaaaan 12, 13, 15

Madruga v. Superior Court, 346 U.S. 556

(FF) sccciessssncinivenniigenebieeieaameeaaeana 14

Malcolm v. Nat'l Gypsum Co., 995 F.2d 346 (2d

Ce, Fad accssssinrsneibeteinsncantaieateiemaiaaane 21, 22

North Dakota Pharmacy Board v. Snyder's

Stores, 414 U.S. 156 (1973).......ccccssererevssee inne 13

Phillips v. Shutts, 472 U.S. 797 (1985).........csecceee 27, 28

STATE CASES

ACandS v. Godwin, 667 A.2d 116 (Md. 1995)...... 5

Hime v. State Farm Fire & Casualty Co., 284

IN. W.. 2d S29 (Minn. 1979)......ccccoccoreseoressesvorseseses 29

McBride v. Galaxy Carpet Mills, 920 F. Supp.

ESTO Gaia CIR. TIO) cevticisnncseteniiaiimmmaiin 29

iV

TABLE OF AUTHORITIES—Continued

Page

Nicolet, Inc. v. Superior Court, 224 Cal. Rptr.

QUG (Cal, Ce, Amp. FRB ps ccssesevccisnecenesscennnianiiiiann 29

Todd-Stenberg v. Dalkon Shield Claimants Trust,

56 Cal Rptr.2d 16 (Cal. Ct. App. 1996)............. 25

Union Pac. Res. Group, Inc. v. Hankins, 51

S.W.3d 741 (Tex. Ct. App. 2001)......ssesesseeeeeees 25

West Virginia ex rel. Allman v. MacQueen, 551

S..26 SOD CW. VG. GPE cessesrseseinencenctniennension 4,5,7

West Virginia ex rel. Appalachian Power Co. v.

MacQueen, 479 S.E.2d 300 (W. Va. 1996) ...2, 3, 4, 19

IN THE

Supreme Court of the United States

No. 02-132

MOBIL CORPORATION and

HONEYWELL INTERNATIONAL, INC..,

Petitioners,

Vv.

BRUCE W. ATKINS, et a/.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Appeals

of West Virginia

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioners’ “Statement of the Case” is seriously income-

plete with respect to both questions purportedly presented by

the petition. Although the first question presented states that

the claims below were aggregated “without any inquiry into

the commonality of those claims,” they were in fact grouped

together under West Virginia Trial Court Rule 26.01 only

after a lengthy inquiry that included hearings, live testimony,

findings, recommendations by a trial judge, and review by the

Chief Justice of the-Supreme Court of Appeals of West

Virginia. The second question presented states that the court

below held that West Virginia law will be applied to all of the

plaintiffs’ claims without identifying where the court made

that holding. In fact, the State Supreme Court did not even

address choice of law issues.

5 ;

1. The Asbestos Litigation Crisis. As petitioners acknow-

ledge, “[t]his country is in the midst of an ‘asbestos-litigation

crisis.’” Pet. 3 (quoting Amchem Prods. Inc. v. Windsor, 521

U.S. 591, 597 (1997)). The “litigation” crisis has arisen from

an asbestos health crisis which resulted from manufacturing

and industrial use of asbestos in products and premises long

after its deleterious effects on human lungs became known.

Although it is difficult to establish the precise number of

asbestos-related suits nationwide, there were approximately

200,000 cases pending as of 1999. Pet. 3 n.2. Those cases

are not, of course, evenly distributed across the fifty states;

many are concentrated in areas, including West Virginia,

where there are high levels of asbestos-related disease and

mortality.' In 1996, the Supreme Court of Appeals of West

Virginia found that the “sheer volume” of asbestos cases

confronting the state’s courts “threaten[ed] to cripple the

common law system of adjudication” by “paralyzing the[]

[lower courts’] active dockets.” West Virginia ex rel.

Appalachian Power Co. v. MacQueen, 479 S.E.2d 300, 303-

04 (W. Va. 1996).

This Court has recognized the daunting nature of the

asbestos-litigation problem. In Amchem, the Court quoted

findings of the Judicial Conference Ad Hoc Committee on

Asbestos Litigation that “dockets in both federal and state

courts continue to grow; long delays are routine; trials are too

long; the same issues are litigated over and over; transaction

costs exceed the victims’ recovery by nearly two to one;

exhaustion of assets threatens and distorts the process; and

future claimants may lose altogether.” Amchem, 521 U.S. at

598. As a result, state and federal courts have been “forced

. . to adopt diverse, innovative, and often non-traditional

' West Virginia has the third-highest asbestosis crude mortality rate

among the fifty states. Centers for Disease Control and Prevention et al.,

Work-Related Lung Disease Surveillance Report 1999, figure I-5.

a ss

3

judicial management techniques to reduce the [paralyzing]

burden of asbestos litigation.” Appalachian Power, 479

S.E.2d at 304.

2. Background of West Virginia Trial Court Rule 26.01.

Contrary to petitioners’ suggestions, neither West Virginia

Trial Court Rule 26.01 nor the procedures preliminarily

contemplated by the pre-trial orders represent a break with

the state’s past practice in asbestos litigation. Rather, those

procedures directly reflect the “specialized approach to the

asbestos personal injury litigation” that has been developed

by the West Virginia courts “over the past twenty years,” and

repeatedly and successfully applied by those courts to resolve

“tens of thousands of asbestos-related claims.” Pet. App.

24a-25a. The heart of that approach has been to sever, for

initial trial, certain “issues that are common to all or almost

all of the parties.” Report of Judge Gaughan, Sept. 6, 2001

(“9/06/01 Report”); see also Pet. App. 25a. Subsequent

proceedings, involving small groups of plaintiffs and their

“common defendants,” then address remaining issues,

including those relating to exposure, causation, and damages.

Pet. App. 28a-29a.

The “common-issues trial” approach to asbestos litigation

has been used in West Virginia at least since 1989, although

it was first approved by the State Supreme Court in

Appalachian Power in 1996. “Common issues” trials on

product liability claims have generally involved determine-

ation by a single jury of whether (and during what time

period) each supplier defendant’s products were defective.

“Common issues” trials on premises liability claims have

been designed to determine whether (and during what time

period) each premises defendant failed to maintain a

reasonably safe workplace.

In Appalachian Power, the State Supreme Court found that

while this “common issues” approach represented a “novel

method of fact resolution,” nothing about it was inherently

4

prejudicial to the defendants and, indeed, that “there [was]

much in the Plan to recommend it to all parties because it

represents an effective and efficient manner to bring closure

to these [more than one thousand] cases without depleting

valuable resources in the event that they are needed to satisfy

a monetary award.” 479 S.E.2d. at 305. Much of the

efficiency derives from the elimination of repetition of certain

witnesses and evidence. As one of the judges who presided

over the Appalachian Power litigation observed in connection

with his earlier experience of claim-by-claim asbestos

litigation: “The anatomy of an asbestos trial, about 50

percent of it, never changed. It was exactly the same, every

case.... [Y]ou’ll have a little scientific evidence on what

[asbestos] is, and then how does it hurt somebody jf it’s

inhaled. And then you’ve got this big body of state of the art

evidence, . . . the information about who knew what when, or

when certain knowledge was available. ... [With respect to

each defendant, what they knew and when they knew it

determines their liability. That is repeated every time a case

is tried, time and time again.” 11/08/00 Tr. 56-57."

“[T]o fully utilize” the concept of “common-issues” trials,

the Appalachian Power court “assigned three circuit court

judges to preside over [common-issue] trials of [all] those

asbestos-related cases which were [then] pending on the

dockets of circuit courts throughout the state.” West Virginia

? With respect to Mobil’s contentions, efficiency would be gained by

determining once, for all of the affected cases, whether the asbestos in

Mobil’s products really was encapsulated in a manner that precluded the

release of fibers into the air, rather than having that issue (and others like

it) determined separately in hundreds of repetitive individual trials. The

automobile manufacturer defendants (DaimlerChrysler Corp., Ford Motor

Corp. and General Motors Corp.) recently sought transfer of many

thousands of asbestos claims across the country in order to obtain a

consolidated determination of a similar encapsulation defense. See In

re: Federal-Mogul Global, Inc., 2002 U.S. App. LEXIS 15331 (3d Cir.

Jul. 31, 2002).

5

ex rel. Allman v. MacQueen, 551 S.E.2d 369, 371 (W. Va.

2001). Pursuant to that order, a series of six common-issue

“trials were held in Kanawha County and Monongalia

County, with the last [of these] common-issue trials held in

1998.” Jd. at 371 & n.6. Those six trials “resulted in the

resolution, in whole or in part, of what is estimated to be over

20,000 asbestos-related cases.” /d. n.6.

West Virginia is by no means alone among the states in its

use of common-issue trials to successfully manage the

enormous caseloads created by asbestos litigation. The

Maryland courts, for example, ordered the consolidation of

more than 8,500 individual actions, initially involving over

100 different defendants. See ACandS v. Godwin, 667 A.2d

116, 120 (Md. 1995). The Maryland litigation—like the

preliminary case management plan in the present case—

divided the proceedings into phases, the first of which

resolved “common issues” related to negligence and strict

liability. Jd. at 144-45. As here, questions specific to

individual plaintiffs and defendants, including issues of

causation and damages, were left to subsequent phases of the

litigation. /d. at 121.

The Maryland Court of Appeals rejected defendants’ claim

that the “common issues” approach denied them due

process—a claim based on the allegation that “the 8,555

plaintiffs in the consolidation have different occupations,

were exposed at different times, at different workplaces, have

different diseases, and different medical histories.” Jd. at

146. Specifically, the Court of Appeals found that “none of

these factors diminishes the commonality of the Phase I

issues.” Jd. Citing a long history of state and federal asbestos

cases in which consolidation and common-issues trial

methods had been used and upheld on appeal, the Court of

Appeals found it “senseless to repeat the presentation of the

same evidence against the same defendants in successive,

individual trials or mini-consolidations.” /d. at 146-49.

6

3. The Operation of TCR 26.01. Following the resolution

of the Kanawha and Monongalia County cases, the State

Supreme Court developed a generalized procedure “by which

[alternatives to the traditional case-by-case trial] could be

examined [in various mass litigation situations] and

appropriate trial management plans could be developed.”

Allman, 551 S.E.2d at 371. That generalized procedure is set

forth in Trial Court Rule 26.01, adopted by the court in July

1999. See id. at 371 & n.7.

Rule 26.01 establishes a permanent “Mass Litigation

Panel” (“Panel’’) consisting of six circuit judges appointed by

West Virginia’s Chief Justice to three-year terms. Pet. App.

36a (TCR 26.01(a)). The rule confers on that Panel the same

powers exercised by the judges appointed in Kanawha and

Monongalia County cases to “develop and implement case

management and trial methodologies for mass litigation and

to fairly and expeditiously dispose of [such] litigation.” /d.

(TCR 26.01(b)). Rule 26.01 also sets forth procedures for

referring cases to the Panel. Specifically, any party, judge, or

the administrative director of the West Virginia courts may

file a motion seeking referral of actions to the Panel. The

motion must identify, inter alia, “the nature of the actions

sought to be referred,” the “basis for the request,” and “a

listing of the particular cases in all the circuits for which a

referral is being requested.” Jd. (TCR. 26.01(e)). That

motion must be “served on all the parties, all judges in actions

which are the subject of the motion, and the Administrative

Director.” Following service, “[a]ny party shall have twenty

(20) days .. . to file a reply memorandum stating its position

and opposition, if any.” Jd. “Any affected judge may file a

reply memorandum within ten (10) days thereafter.” /d.

Finally, after the filing of a motion and replies, the Chief

Justice of the State Supreme Court may either act directly on

the motion or recommend a hearing to inquire further into the

desirability of the proposed referral. /d.

LTE ETN ETRE SOE

7

4. The Present Proceedings. The present petition

involves cases brought by approximately 8,000 asbestos

plaintiffs referred to the Mass Litigation Panel pursuant to a

motion under 26.01(e). That motion, filed by two West

Virginia circuit court judges in June 2000, was referred,

together with opposing memoranda, by the Chief Justice to a

trial judge “for the purpose of conducting a hearing and

submission of findings of fact and a recommendation to the

Chief Justice regarding the motion to refer.” 11/17/00

Administrative Order at 1. In October 2000, the judge held a

Status conference to determine goals for the hearing, and

determined that an inquiry into common issues of law and/or

fact would be a critical issue. At the hearing in November

2000, the judge heard lengthy argument and testimony on that

subject. Counsel for one defendant argued that the cases

should not be referred because they lacked sufficient

“commonality,” while a representative for most of the

remaining defendants indicated that “there are some common

issues and that there is a basis, under Rule 26... for [a

referral to the Panelj.” 11/08/01 Tr. 46. Following the

hearing, the Chief Justice issued an administrative order

accepting the recommendation that the referral motion be

granted. 11/17/00 Administrative Order.

The trial judge initially assigned to develop a case

management plan for the referred cases developed a plan that

called for a series of traditional trials on “all issues” between

small groups of plaintiffs and defendants. Both plaintiffs and

defendants sought extraordinary relief from the West Virginia

Supreme Court to prevent this plan from going into effect.

The State Supreme Court ruled that the challenged case

management plan did not “fully meet” the need for a “fair[]

and expeditious[]” approach to resolving the pending asbestos

cases, and set forth a “fourteen-point directive for the trial

court [to follow] in connection with the management of these

cases.” Allman, 551 S.E.2d at 375-78; see also Pet. App. 4a.

8

After that decision, the West Virginia Chief Justice

ddfignated a new supervising judge, who met with counsel

representing plaintiffs and defendants and, in September

2001, adopted a “Report” setting forth the general approach

to case management that he intended to adopt. In particular,

the Report canceled the “all issues” trials that were previously

scheduled and contemplated that all cases not successfully

mediated by March 4, 2002 would be categorized into three

groups and scheduled for initial trials of “issues that are

common to all or almost all of the parties” within each

group—precisely as had been done in the similar Kanawha

and Monongalia County cases. Report at 6. The Report

noted, however, that “the trial plan has not been solidified,”

and that the judge would continue “to develop a process

which will eliminate the need for repetitive discovery

depositions, interrogatories, requests for admissions, etc.”

Report at 8.

After the issuance of the September 2001 Report, Mobil

filed a motion in the State Supreme Court seeking a writ of

mandamus or prohibition to prevent implementation of the

Report’s provisions. Mobil claimed that the trial court’s

failure to conduct an evidentiary hearing pursuant to W. Va.

R. Civ. P. 42 on the question whether “mass litigation” could

provide a fair determination of the claims presented was clear

error—notwithstanding that the question whether “mass

litigation” treatment was appropriate for these cases had

already been the subject of a motion, memoranda, hearings,

and a determination by the Chief Justice under Rule 26.01 (e).

In February 2002, the trial court issued a “Scheduling

Order” (“Order”) further developing the case management

plan. That Order indicated that the court planned to

implement a “trial format . . . substantially identical to the

previous consolidated ‘mass trials’ [in Kanawha and

Monongalia Counties].” Pet. App. 25a. Specifically, the

cases would be divided into three groups reflecting the

“general types of causes of action asserted by the plaintiffs”:

—————————————————

9

“(1) product liability claims; (2) premises liability claims; and

(3) claims by employees against their employers under the

provisions of W. Va. Code § 23-4-2.” Pet. App. 25a. The

Order also indicated that the first phase, or “common issues”

phase, of trial would be targeted to “determin[ing] the

common issues of fault” within those groups of cases. /d. at

26a. The Order emphasized that, as in the earlier common

issues trials, the “common issues” phase of trial for products

liability claims would require the jury to make individualized

findings as to each defendant, including “whether and for

what time period [that defendant] sold or distributed a

defective asbestos-containing product.” Jd. The specific

“common issues” to be tried were, however, left for future

determination.

The Order also addressed additional proceedings to be held

after the close of the “common issues” phase of trial.

Specifically, the court indicated that “[nJew juries” would be

impaneled for “mini-trials” as to causation and damages. Pet.

App. 28a. These mini-trials “will consist of a number of

plaintiffs against their common defendants,” with the groups

“based on causes of action, geographic locations, and similar

exposure criteria.” /d.

5. The Decision of the State Supreme Court. In April

2002, the State Supreme Court issued an opinion addressing

Mobil’s request for a writ of mandamus or prohibition to

prevent further development and implementation of the

preliminary case management plans set forth in the Report

and the Order. The court first rejected Mobil’s argument that

the trial court was obliged to hold an evidentiary hearing

pursuant to W.Va. R. Civ. P. 42 as to whether these cases

were appropriate for consolidation. The court explained:

Mobil overlooks the fact that the purpose of those

findings [is] only to make the initial determination of

whether the cases should be grouped together for trial

purposes. With the operation of TCR 26.01, the

10

determination of the need to group cases as “mass

litigation” for trial purposes is made through a process

that operates in a distinct fashion. . . . Because this

Court has previously approved the treatment of the

current asbestos cases under the mass litigation rule,

there is no reason to reexamine whether these cases

should have been grouped together in the first instance.

We are long past the initial determination, which

was reached by this Court in November 2000, that

these cases can, based on the existence of common

factual and/or legal issues, be grouped together for

trial purposes.

Pet. App. 13a.

The court then turned to an analysis of Mobil’s claim that

pursuing a “common issues trial” approach to these cases

would necessarily abridge Mobil’s due process rights. This

claim, the court concluded, was “simply premature”:

Because the trial court has yet to finalize the specifics

regarding identification of the common issues that will

be the focus of the initial liability phase of the litigation,

Mobil’s contention of a denial of Due Process predicated

on the lack of commonality of the issues subject to the

liability phase is simply premature. We cannot, in

advance of any such final determination of these

common issues, resolve Mobil’s speculative, and

possibly unrealized, claims of Due Process violations.

Id.

Not surprisingly, the State Supreme Court did not address

Mobil’s claim that “consolidation” of these asbestos cases

under Rule 26.01 was “unsuitabie” because it would require

the trial court to confront difficult choice of law issues. As

the State Supreme Court was well aware, the trial court—

which had not yet even finalized its case management

approach—had not yet reached a point in the proceedings

where it would have been appropriate to consider choice of

law issues. Indeed, the September 2001 Report and February

1]

2002 Order did not contain a single word addressing choice

of law. Accordingly, on this issue, there was nothing for the

State Supreme Court to review.

One justice of the State Supreme Court issued a concurring

opinion expressing reservations, and sharing Mobil’s concern

that the trial judge ultimately would be unable to successfully

negotiate what he termed the choice of law “minefield.” Pet.

App. 22a. But the concurring justice nonetheless concluded

that “‘at this juncture at least, Mobil’s claims of due process

violations are premature because the trial court has not

completed its trial plan.” /d. at 19a.

On August 12, 2002—more than eight months after Mobil

filed its petition for review with the State Supreme Court and

more than three months after the State Supreme Court issued

the decision under review—the trial court addressed the

choice of law issue. One of the judges presiding over the

“common issues” phase of trial ruled that the judges intended

to “apply West Virginia law in all aspects of the first phase

[the ‘common issues’ phase] of this trial.” 8/12/02 Tr. 172.

He then expressly stated that “to the extent that anybody is

aggrieved by that, your objection is noted and preserved” for

appeal. Jd. He also clarified that the ruling did not apply to

later phases of the trial: “Right now we are dealing with

Phase I. Nobody should read anything into that [choice of

law ruling] one way or another” as to later phases. /d. at 173.

At the August 12, 2002 hearing, the trial court also

addressed the question—deferred by Judge Gaughan’s

February 2002 Order—of what “common issues” would be

tried during Phase 1. Judge Recht indicated that, for the

premises cases, the “common issues” questions would

essentially track those used in the Allman case. 8/12/02 Tr.

218. Judge Stephens indicated that Phase 1 of the

manufacturers’ trial would proceed based on eleven common

12

issues identified by plaintiffs. Jd. at 174-76.> As in the

earlier product liability trials in the Kanawha and Monongalia

County cases, those questions focus the jury’s attention on

whether (and during what time period) each supplier

defendant’s products were defective, as well as related issues

such as the need for and adequacy of warnings.

REASONS FOR DENYING THE WRIT

Petitioners ask this Court to review the State Supreme

Court’s decision not to grant a writ of prohibition. At the

time the court entered the judgment at issue, the trial court

had not yet decided what common issues would be tried in

the first phase of the proceedings or what law would be

applied. The court below properly declined to issue an

extraordinary writ in those circumstances, but instead

correctly concluded that it did “not find the issues ripe for

review.” Pet. App. 18a. Accordingly, there is no important

issue of federal law warranting review by this Court. Nor is

there any conflict warranting review. In addition, the

interlocutory posture of this proceeding counsels strongly

against review by this Court. In fact, there is no final

judgment for this Court to review, which is a prerequisite for

review by this Court of a state court decision.

I. THE INTERLOCUTORY DECISION OF THE

STATE SUPREME COURT IS NOT A

REVIEWABLE “FINAL JUDGMENT.”

Petitioners ask this Court to review the judgment below

even though no trial has been held and no defendant has been

found liable. As this Court recently emphasized, however,

the statutory provision governing icview of state court

decisions, 28 U.S.C. § 1257(a), “establishes a firm final judg-

ment rule.” Jefferson v. City of Tarrant, 522 U.S. 75, 81

* As Judge Stephens noted at the hearing, the defendants had declined

to identify any common issues. 8/12/02 Tr. 176.

13

(1997). To be reviewable, a state court judgment must “be

final as an effective determination of the litigation and not of

merely interlocutory or intermediate steps therein.” /d.

Plainly, the decision below is not final as an effective

determination of this litigation. This case presents no unusual

circumstances warranting a departure from this Court’s long-

established practice of respecting Congress’ command that it

not intrude into litigation pending in state courts.

The requirement of finality “serves several ends: (1) it

avoids piecemeal review of state court decisions; (2) it avoids

giving advisory opinions in cases where there may be no real

‘case’ or ‘controversy’ in the sense of Art. III; (3) it limits

review of state court determinations of federal constitutional

issues to leave at a minimum federal intrusion in state

affairs.” North Dakota Pharmacy Board v. Snyder's Stores,

414 U.S. 156, 159 (1973). Each of these ends is implicated in

this case. First, the preliminary nature of this case creates a

strong likelihood of piecemeal appeals. Second, a decision

by this Court in the present procedural posture is all too likely

to be merely advisory, as the issues to be tried, the law to be

applied, and the number of defendants going to trial remain

subject to change. Third, the review sought by petitioners

would amount to an unprecedented intrusion into state court

affairs. The State Supreme Court declined to exercise its

discretion to review an interim scheduling order because it

believed that such interlocutory review would be premature

and that any issues not obviated through the actual course of

events at trial are likely to be presented more sharply upon a

full record. To hold that a state supreme court commits

constitutional error by declining to grant extraordinary relief

at an interlocutory phase would seriously intrude on the

autonomy of state judiciaries.

Although this Court’s firm final judgment rule has been in

effect “[f]rom the earliest days of our judiciary,” Jefferson,

522 U.S. at 80, on a very few occasions the Court has

14

reviewed judgments of state courts where proceedings had

not necessarily ended completely. But those cases were very

different than this case. Two of the three cases cited by

petitioners involved jurisdictional claims that could have

ended the litigation. The dispute in Madruga v. Superior

Court, 346 U.S. 556, 557 (1954), was whether a state court

had jurisdiction over a “case for sale of a vessel and partition

of the proceeds,” or whether “only the United States district

court sitting in admiralty could take jurisdiction to consider

such a case.” Similarly, Fisher v. District Court, 424 U.S.

382, 383 (1976), presented the question whether a state court,

rather than a tribal court, “has jurisdiction over an adoption

proceeding in which all parties are members of the Tribe and

residents of the Northern Cheyenne Indian Reservation.”

Citing Madruga and noting that the dispute had been brought

to the Montana Supreme Court as an original proceeding

seeking an extraordinary writ, the Court in Fisher held that

[a] judgment that terminates original proceedings in a state

appellate court, in which the only issue decided concerns the

jurisdiction of a lower state court, is final, even if further

proceedings are to be had in the lower court.” /d. at 385 n.7.

This case, like Madruga and Fisher, arises from a request

for an extraordinary writ. But unlike those cases, the

jurisdiction of the state court is not at issue and no decision

by this Court could have the effect of ending the litigation.

At most, petitioners would obtain a judgment from this Court

providing guidance on how the trials should be structured and

how choice-of-law issues should be resolved. Accordingly,

concluding that the decision below is a final judgment would

stretch the language of section 1257 far beyond the modest

steps this Court has taken in permitting review in unusual

cases, and far beyond any sensible meaning of the final

judgment language. Indeed, the result petitioners seek would

inappropriately relegate section 1257’s final judgment rule to

15

the status of “one of those technicalities to be easily scorned.”

Jefferson, 522 U.S. at 81 (citation omitted).*

Recognizing that this Court is reluctant to review cases in

an interlocutory posture even where the finality requirement

governing state court decisions is not implicated, petitioners

argue that they wil! have to settle because “the underlying

claims assert potentially serious personal injuries,” Pet. 28,

and suggest that review at this time is appropriate for that

reason. There is no merit to that contention. Mobil and

Honeywell are represented by expert counsel who will have

the opportunity to defend their clients on the merits at the

appropriate stage of the further proceedings. If their defense

is as sound as Mobil suggests, see Pet. 4-5, they should

proceed to trial.” If they are not as sure as the petition

* In addition to Madruga and Fisher, petitioners cite then-Justice

Rehnquist’s in-chambers opinion in Board of Education v. Superior

Court, 448 U.S. 1343 (1980). In the course of denying the requested stay

of a busing order, the in-chambers opinion noted that the stay action was

an original proceeding seeking an extraordinary writ and stated that “this

Court would in all probability have jurisdiction over the present action

should a petition for certiorari be filed by the Board.” /d. at 1346. It

appears that the relief requested by the Board would have effectively

terminated the busing dispute entirely because the Board argued that any

busing in the Los Angeles Unified School District would violate the

Fourteenth Amendment. Therefore, the tentative prediction that the Court

would have jurisdiction may have been correct. See Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 482-83 (1975) (recognizing that certiorari

has been allowed despite the pendency of further state proceedings where,

inter alia, “reversal of the state court on the federal issue would be

preclusive of any further litigation on the relevant cause of action rather

than merely controlling the nature and character of . . . the state

proceedings still to come”). The the in-chambers opinion hardly provides

support for the broad extension of section 1257 sought by petitioners,

however, since there is no prospect that a decision from this Court will

end the litigation entirely.

> Of course, petitioners may challenge decisions concerning trial

structure and choice-of-law in this Court at an appropriate time. See R.

Stern et al., Supreme Court Practice 155 (8th ed. 2002). They also may

16 >

suggests that the asbestos in the products Mobil manufactured

could not escape and cause serious injury, they should

consider settling.

But requiring the plaintiffs, many of whom have suffered

serious personal injury, to litigate one at a time against each

defendant—as Mobil argued below (see note 6, infra)—is not

an acceptable solution. As this Court recognized in Amchem,

521 U.S. at 598, that approach would lead to “long delays”

before trial and to trials that “are too long” because “the same

issues are litigated over and over.”

Il. THE FIRST QUESTION PRESENTED DOES

NOT WARRANT REVIEW.

A. The State Supreme Court Did Not Hold That

Thousands Of Claims Could Be “Aggregated

For A Mass Liability Trial” Without “Any

Inquiry Into The Commonality Of Those

Claims Or The Prejudice That Would Result

From Such An Extraordinary Undertaking.”

Petitioners first argue that this Court should review the

State Supreme Court’s purported holding that “mass

aggregation for trial requires no inquiry into commonality or

potential prejudice.” Pet. 13. But the decision below did not

“hold” any such thing. To the contrary, the court confirmed

its earlier determination, made “in November 2000, that these

cases can, based on the existence of common factual and/or

legal issues, be grouped together for trial purposes.” Pet.

App. 13a.

As described above, that determination was the result of a

lengthy process required by Rule 26.01 to ascertain whether

sufficient commonality existed in these cases to justify

again raise the issues presented in their petition, id., although it seems

certain that actual decisions will supersede the hypothetical questions

presented.

Pe Te

17

“group[ing them] together for trial.” /d. The process began

in August 2000, when the West Virginia’s Chief Justice

referred the Rule 26.01 motion to a trial judge “for the

purpose of conducting a hearing and submission of findings

of fact and a recommendation to the Chief Justice regarding

the motion to refer.” 12/21/00 Administrative Order at 1. It

included a status conference in October 2000 at which one of

the attorneys for defendants stated that “‘as the paperwork that

we filed on behalf of most defendants [indicated] . . . we like

the idea of having a statewide coordinated effort to deal with”

these asbestos cases. 10/17/00 Tr. 10. Another defendants’

lawyer, representing “nontraditional defendants in [] asbestos

litigation,” agreed that the best way that this “asbestos

litigation . . . [can be] handled . . . [is] through a coordinated

effort at the Mass Litigation Panel.” 10/17/00 Hearing at 33.

But other defendants’ attorneys disagreed, and the judge

concluded that “the major issue” for a subsequent hearing

would be whether the cases “generally come in” under Rule

26.01, that is, “[d]o they involve a common question of fact,

common issues?” /d. at 23.

The transcript of the November 8, 2000, hearing addressing

that “major issue” runs to more than 100 pages. As antic-

ipated, that hearing—attended by counsel for both peti-

tioners—focused primarily on the question of commonality.

Counsel for USX and CSX Transportation and Norfolk

Southern Railway Company argued that the cases do not

present the commonality required by Rule 26, and presented

live witnesses testifying in support of that position. However,

counsel speaking “on behalf of most of the defendants”

presented a contrasting view, stating that “defendants do

believe that there are some common issues and that there is a

basis, under Rule 26. . . for the handling of asbestos cases

with a referral to the Mass Litigation Panel.” 11/08/00 Tr. 45,

46. Counsel for petitioners did not disagree.

In findings of fact and conclusions of law submitted to the

Chief Justice on November 15, 2000, the trial court found that

18

“(t]he plaintiffs and defendants, with the exception of USX

and CSX, generally agreed that the cases should be sent to the

mass litigation panel.” 11/17/00 Order at 2. He

acknowledged, however, that “USX and CSX specifically

object to their cases being referred with the other asbestos

cases. These defendants believe that their cases are not

significantly similar as is required by the rule.” /d. The

judge’s conclusions of law rejected that argument, however,

recommending that “all pending asbestos litigation in the

state of West Virginia” be referred to the Mass Litigation

Panel. /d. at 3. On November 17, 2000, West Virginia’s

Chief Justice issued an order adopting the lower court’s

findings and conclusions, and requiring that “[w]ithin 10 days

of the entry of this order the plaintiffs in this matter and the

Gefendants in this matter shall each appoint seven

representatives to meet with the Mass Litigation Panel to

develop specific rules and strategies to deal with the

disposition of these cases.” /d. at 4.

Against this backdrop—entirely omitted by petitioners—it

is obvious that the State Supreme Court did not “hold” that

referring these cases for consolidated treatment under Rule

26.01 does not require “any inquiry into the commonality of

those claims.” To the contrary, Rule 26.01 itself requires

such an inquiry, and a lengthy inquiry was, in this case,

conducted. In rejecting Mobil’s claim that the trial judge was

required to conduct another such inquiry under W.Va. R. Civ.

P. 42, the State Supreme Court merely held that “[bJecause

this Court [through the Chief Justice’s 11/21/00 Order] has

previously approved the treatment of the current asbestos

cases under the mass litigation rule, there is no reason to

reexamine whether these cases should have been grouped

together in the first instance. We are long past the initial

determination, which was reached by this Court in November

2000, that these cases can, based on the existence of common

factual and/or legal issues, be grouped together for trial

purposes.” Pet. App. 13a.

19

B. Petitioners Will Be Entitled To Seek Review

Of Their Claim That A “Common Issues”

Trial Violated Their Due Process Rights

When The Facts Necessary To Rule On That

Issue Have Been Established.

Dist'nct from petitioners’ incorrect claim that the court

below held that no inquiry into commonality of issues was

required is their suggestion that any common issues trial

would necessarily violate their due process rights. The peti-

tion argues, for example, that a “common issues” approach

will “make it impossible for a defendant like Mobil to assert

its unique defenses in a meaningful way,” thereby violating

due process. Pet. 18.° As the State Supreme Court correctly

held, however, the question whether a “common issues” trial

will, at some future time, result in due process violations

cannot be addressed in the absence of information that clearly

did not exist at the time of the State Supreme Court’s review.

The propriety of a “common issues” approach will, of

course, depend on factors including the precise common

issues tried, the manner and extent to which individual

defendants are allowed to present what Mobil terms “unique”

defenses, and the means used to obtain from the jury

individualized determinations on the issues tried as to each

defendant. As the State Supreme Court correctly concluded,

° In its brief to the State Supreme Court, petitioner Mobil put the same

point far more starkly, arguing that “individual treatment . . . of each

plaintiff’s claim is the only constitutional manner in which to proceed in

asbestos” actions.” 12/21/01 Memorandum of Law at 31. When stated so

plainly, Mobil’s argument is clearly an effort to avoid any adjudication of

the vast majority of asbestos plaintiffs’ claims. As the State Supreme

Court pointed out in 1996 in Appalachian Power, the disposition of then-

pending asbestos cases through “traditional” litigation would have

required “approximately 150 judge years.” 479 S.E.2d at 303 (citing Jack

B. Weinstein, Individual Justice in Mass Tort Litigation 140 (1995)).

Such enormous resources are simply unavailable.

20

however, at the time of the decision below, the trial court had

yet to address even the first of these important questions—the

identification of “common issues” to be tried.’ “Because the

trial court has yet to finalize the specifics regarding

identification of the common issues that will be the focus of

the initial liability phase of the litigation,” the court below

held, “contention of a denial of Due Process predicated on the

lack of commonality of the issues subject to the liability

phase is simply premature.” Pet. App. 15a. The court

concluded that it could not, “in advance of any such final

determination of these common issues, resolve Mobil’s

speculative, and possibly unrealized, claims of Due Process

violations.” Jd.

For the same reason, petitioners’ pursuit of this issue

before this Court is premature as well. If the injury claimed

by petitioners ever progresses from the realm of the purely

hypothetical to the actual, they will, of course, at an

appropriate time be entitled to seek the review that the State

Supreme Court has thus far deemed it unnecessary to provide.

And if petitioners’ disagree with the result of that review,

they will, of course, be free to seek this Court’s review. For

the moment, however, review of petitioners’ claim that a

“common issues” trial will violate their due process rights is,

as the court below stated, “simply premature” because the

facts necessary to rule on that claim have not yet been

established.

” As set forth above, that question was not addressed until months after

the decision below, at a hearing on August 12, 2002. See supra at 11-12.

21

C. The West Virginia Courts’ Preliminary Plan

To Employ “Common Issues” Trials Followed

By Small-Group Trials On Remaining Issues

Is Entirely Consistent With The Federal

Circuit Court And _ State Intermediate

Appellate Court Cases Cited By Petitioners.

Petitioners maintain that the State Supreme Court’s

“holding” that “mass aggregation” of cases “requires no

inquiry into commonality or potential prejudice” conflicts

with decisions of other courts.” Pet. 13. There is no conflict.

Petitioners’ lead case, Garber v. Randell, 477 F.2d 711 (2d

Cir. 1973), has little in common with the decision below.

Garber involved a trial court order requiring that three

shareholder derivative class actions be re-filed in a single

consolidated complaint, “which superseded the complaints

filed in the three separate actions.” 477 F.2d at 716. The

Second Circuit held that the lower court had erred in

mandating a single “‘mixed bag’ type of consolidated

complaint.”

The Garber holding is irrelevant here because the trial

court’s Report and Order did not require or have the effect of

requiring that all asbestos cases in West Virginia be refiled in

a single, consolidated complaint. To the contrary, the trial

court’s preliminary rulings indicate that the separate cases

will be divided into three categories for the identification of

“common issues” within each category amenable to trial in an

initial “common issues” phase of litigation; the cases will

then be separated into groups consisting of “a number of

plaintiffs against their common defendants’’—with the groups

“based on causes of action, geographic location, and similar

exposure criteria”—for trial of remaining issues. Pet. App.

28a. Nothing in Garber is inconsistent with that approach.

Malcolm v. Nat’! Gypsum Co., 995 F.2d 346 (2d Cir.

1993), is equally irrelevant here. That appeal challenged a

ten-month, “reverse-bifurcated” (damages, followed by

22

liability) trial of all the issues between 48 plaintiffs and 25

direct defendants, as well as hundreds of third-party

defendants and fourth-party defendants added via impleader.

995 F.2d at 349-50. In the first phase of trial, to decide

damages, the jury was presented with “detailed testimony for

each victim,” including “degree of impairment, specific

medical history, emotional state, and medical prognosis.” /d.

at 349, The Second Circuit found that the “the maelstrom of

facts, figures, and witnesses, with 48 plaintiffs, 25 direct

defendants, numerous third-and-fourth party defendants, and

evidence regarding culpable non-parties and over 250

worksites throughout the world was likely to lead to jury

confusion.” Jd. at 352. It emphasized that its holding was

“narrow,” and that it did “not wish to be understood as

condemning all consolidations of asbestos cases.” /d. at 354.

The court also underscored the significance of the “unique

circumstances of this case” in reaching its decision, and

relied on the jury’s actual verdict with regard to apportion-

ment of liability as evidence of the confusion suggested. See

id. at 352.

The decision below does not contemplate such an “all

issues” trial (or resulting “maelstrom’’). As noted above, the

preliminary plan approved by the court below calls for an

initial phase of trial on a limited number of discrete “common

issues” relating primarily to what defendants knew and

when they knew it, followed by “mini-trials” between parties

grouped together based on precisely the kinds of factors

examined by the Malcolm court on the issues remaining. Pet.

App. 28a. See Malcom, 995 F.2d at 350-51. Malcolm did not

consider, and certainly would not prohibit, this approach.

The Fifth Circuit cases cited by petitioner are still more

obviously inapposite. Jn re Chevron U.S.A., Inc., 109 F.3d

1016 (5th Cir. 1997), involved thousands of personal injury

claims against Chevron arising from its failure to remediate

contaminated property prior to selling it to residential

23

developers. The trial court’s case management plan

envisioned a “unitary trial on the issues of ‘general liability or

causation’... as well as the individual causation and damage

issues” to be held with respect to thirty “bellwether”

plaintiffs. Jd. at 1017. Those plaintiffs would comprise

“fifteen (15) of the ‘best’” (selected by plaintiffs) and “fifteen

(15) of the ‘worst’” (selected by defendants) cases contained

among the 3,000-member plaintiff group, and the results of

that trial would be used to provide information on the value

of the cases (as reflected by the jury verdicts) to remaining

litigants wishing to settle.

The Fifth Circuit held that the “selected thirty (30) cases

... are not cases [properly] calculated to represent the group

of 3,000 claimants.” Jd. at 1020. Accordingly, the court

found, “the results . . . obtained from a trial [would] lack the

requisite level of representativeness” to permit reliable infer-

ences to be drawn regarding the remaining cases. Id. The

“common issues” approach contemplated by the West

Virginia courts clearly has nothing in common with the

“bellwether” approach disapproved by the Fifth Circuit.

Gwathmey v. United States, 215 F.2d 148 (Sth Cir. 1954),

is equally far afield. It involved consolidation to establish the

value of 236 tracts of land condemned by the federal

government in the Cape Canaveral area. This consolidated

action attempted to establish the value of all of these parcels

in “one massive trial, in which the jury . . . mafdje no

decision until the completion of all the evidence,”

presentation of which took “some seven weeks” on the “issue

of value alone.” Jd. at 152. The court expressed concern that

the trial placed landowners in an “impossible situation.” /d.

at 154. For example, although attorneys and owners often

were not present when tracts in which they were not

interested were being tried, “Government witnesses repeat-

edly testified as to comparable sales, physical conditions and

other value factors relating to one tract while another

24

completely separate tract was being tried.” /d. As a result,

“the Government was able repeatedly to restate and

emphasize certain of its evidence as to some controversial

areas, with cross-examination either not allowed or allowed

so long after direct examination that it was_ totally

ineffective.” /d. The court further observed that “during the

trial there were so many tracts and so much evidence that the

witnesses, the attorneys and even the judge himself seemed to

be confused at times,” and concluded that, for these and other

reasons, the trial violated the rights of landowners to due

process and just compensation. /d. at 156.

In the present case, it is obvious that no comparable

problems have arisen because no trial has yet occurred. And

nor is there any reason to think that similar problems will

occur—as repeatedly noted above, the preliminary plans

approved by the court below call for a “common issues”

phase of litigation addressing a limited number of discrete

questions relating to defendants’ knowledge of the risks of

asbestos and the actions they took (or should have taken) as a

result, followed by additional phases of “mini-trials” to

address remaining issues, including damages. Petitioners

have not presented—and, given the preliminary state of this

proceeding, could not now present—any evidence to suggest

that the problems noted by the Gwathmey court will recur

here. Accordingly, there is not—and, at this time, could not

be—a conflict between this case and Gwathmey.

The state court cases with which petitioners claim

“conflicts” merit little consideration. Supreme Court Rule

10(b) lists among the reasons the Court considers for granting

certiorari situations where “a state court of last resort has

decided an important federal question in a way that conflicts

with the decision of another state court of last resort.” But

the rule says nothing of decisions by state intermediate

appellate courts. Nor should it—such decisions are properly

subject to review, in the first instance, by the “state court of

i

i

25

last resort,” not this Court. Yet Todd-Stenberg v. Dalkon

Shield Claimants Trust, 56 Cal Rptr.2d 16 (Cal. Ct. App.

1996), and Union Pac. Res. Group, Inc. v. Hankins, 51

S.W.3d 741 (Tex. Ct. App. 2001), are obviously intermediate

court of appeals decisions. Accordingly, they would present

no basis for review by this Court even if they presented an

actual conflict with the decision below.”

III. THE SECOND QUESTION PRESENTED DOES

NOT WARRANT REVIEW.

A. The Supreme Court Of West Virginia Did Not

Hold That The “Due Process Clause Permits

A State Court To Apply Its Own State Law”

To Cases That “Have No Connection At All

To The State.”

The second question presented by petitioners is even more

obviously not truly presented here. That question is based on

a purported “holding” by the State Supreme Court “that the

Due Process Clause permits a state court to apply its own

state law to thousands of product-liability cases ... that...

have no connection at all to the state.” Pet. iii, Again, the

court below held no such thing—in fact, at the time of the

State Supreme Court’s decision, the trial court had made no

* But, if anything, these cases support the decision below. Todd-

Stenberg upheld a consolidated trial of three personal injury suits

involving pelvic inflammatory disease (“PID”) contracted as the result of

use of the intrauterine device known as the Dalkon Shield. The court held

that the “trial court correctly anticipated that a large portion of the trial

would be devoted to issues common to the three cases: how PID occurs,

whether it can be caused by the use of Dalkon Shield, and what other

factors might cause or contribute to the disease.” 56 Cal. Rptr. at 17. The

same is true here with respect to asbestos-related diseases—hence the

West Virginia courts’ use of “common issues” trials. Petitioners’ second

state case, Union Pacific, similarly upheld certification of a class of

plaintiffs holding royalty interests under 590 oil and gas leases (involving

122 unique lease forms and 58 types of royalty clauses) that sought

damages against Union Pacific.

26

ruling whatsoever on the question of what state or states’ law

should apply in any of the various asbestos trials

contemplated by the court’s preliminary case management

plan, and the State Supreme Court likewise did not address

this issue in any way.

The opinion of the State Supreme Court nowhere contains

the phrase “choice of law,” or “law to be applied,” or

anything remotely similar. And while the petition contains

repeated references to a purported “choice-of-law holding,”

petitioners’ only efforts to cite to this “holding” are a pair of

vague references to page “App. 7a.” See Pet. 10 & 22. There

are, however, no “holdings” of any sort—let alone a choice-

of-law holding—on “App. 7a.” That page merely reproduces

a portion of the “Procedural Background” section of the

lower court’s opinion, not any part of the court’s legal

analysis. And “App. 7a” does not even mention choice of

law, or anything related to it.'°

After the decision below—more than three months after, at

an August 12, 2002 hearing—the trial court ruled on choice

of law, at the urging of counsel for numerous major

defendants. Specifically, Mr. David Hendrickson, counsel for

Shell Oil and other defendants in these proceedings, stated to

” See, e.g., Pet. iii, 10,11-12, 21, 22, 26.

° Petitioners’ statement that the lower court’s purported choice of law

“holding” applied to only “one group of defendants,” suggests that they

may be misinterpreting the State Supreme Court’s description of the three

“trial groupings” contemplated for the “Phase I” proceedings as a ruling

on choice of law. As the court below recited at Pet. App. 7a, the trial

court had grouped the causes of action alleged by the plaintiffs into three

categories: “(1) product liability claims; (2) premises liability claims; and

(3) deliberate intent causes of action asserted under West Virginia Code §

23-4-2 (1994).” The final group comprises claims based on the

“deliberate intent” provision of West Virginia’s Workers’ Compensation

Act. Clearly, however, nothing in the lower court’s reiteration of the

categories tentatively established by the trial court constituted a choice of

law ruling of any kind.

27

the presiding judges: “I take it you all haven’t made a ruling

on [choice of law]. ... I just would like to know, [as to]...

common issues . . . whether we are going to deal with that

briefly, your Honor.” 8/12/02 Tr. 170-71. One of the trial

judges responded that the judges intend to “apply West

Virginia law in all aspects of the first phase [the “common

issues” phase] of this trial.” /d. at 172. The judge then

expressly stated that “to the extent that anybody is aggrieved

by that, your objection is noted and preserved” for appeal. /d.

He also clarified that the ruling did not apply to later phases

of the trial: “Right now we are dealing with Phase I. Nobody

should read anything into that [choice of law ruling] one way

or another” as to later phases. /d. at 173.

Accordingly, as of August 12, 2002, petitioners (and the

other defendants) do have a decision on choice of law as to

“Phase I” (and only “Phase I’) of the proceedings

contemplated by the trial court. Petitioners are, as the trial

court suggested, entitled to seek review of that decision in the

State Supreme Court at an appropriate time. Until such

review takes place, however, it would clearly be premature

for this Court to intercede.

B. The “Choice Of Law” Cases Cited By

Petitioners Are Irrelevant. |

Petitioners argue that the purported “choice-of-law

decision” below conflicts with this Court’s holding in Phillips

v. Shutts, 472 U.S. 797 (1985). In Phillips, this Court held

that in order for a forum state—Kansas, in that case—to

apply forum law to claims asserted by a class action, the state

“must have a ‘significant contact or aggregation of contacts’

to the claims asserted by each member of the plaintiff class . .

. to ensure that the choice of Kansas law is not arbitrary or

unfair.” Jd. at 821-22. Significantly, however, even though

some “97% of the plaintiffs in the case had no apparent

connection to the State of Kansas except for this lawsuit,” id.

at 814-15, this Court held that there could be no constitutional

28

defect in Kansas’ application of forum law without a prior

showing of an actual conflict on issues relevant to the case:

“We must first determine whether Kansas law conflicts in any

material way with any other law which could apply. There

can be no injury in applying Kansas law if it is not in conflict

with that of any other jurisdiction connected to this suit.”

Id. at 816.

In the present case, petitioners have not only failed to

demonstrate—either to the courts below or to this Court—any

“material” conflict between West Virginia law and that of

another state: they have not even made any specific showing

of which other states’ laws might apply to the case. To

allege, therefore, that “[t]he decision below, forgoing any

inquiry into the existence of contacts sufficient to justify

application of forum, cannot be reconciled with the precedent

of this Court,” Pet. 23, not only misstates what the State

Supreme Court actually decided, but also ignores the

preliminary conditions that Phillips established as a basis for

invoking such an inquiry.

The lone “example” that petitioners offer of a “conflict”

between West Virginia’s products liability law and that of

other states is the claim that some states have rejected

traditional “pure joint and several liability as fundamentally

unfair to defendants.” Pet. 25. The sole state authority that

petitioners cite in support is a Kansas Supreme Court decision

criticizing traditional joint and several liability. /d. But

petitioners have presented no evidence, either to this court or

the courts below, showing that any plaintiffs are properly

subject to Kansas law on this issue. Petitioners also ignore

the fact that questions of joint and several liability clearly are

not “common issues” to be addressed in Phase I of these

proceedings, but plaintiff-specific issues to be addressed in

the “mini-trials” conducted after the “common issues” phase.

Pet. App. 28a. Such trials will, of course, present their

own choice-of-law issues, and the opportunity to address

those issues.

29

The cases petitioners cite to illustrate lower courts’

application of Phillips similarly show that petitioners have

failed to carry their burden to establish the existence of

material conflicts. In Nicolet, Inc. v. Superior Court, 224 Cal.

Rptr. 408 (Cal. Ct. App. 1986), for example, the California

Court of Appeals held that before apm iying the “governmental

interest analysis” required by Phi ips, the court would first

have to “determine whether in fac Pennsylvania law conflicts

with California law” on the is ues presented. /d. at 416.

Similarly, the Minnesota Supreme Court inquired into the

existence of a material conflict in upholding the application

of forum law in Hime v. State Farm Fire & Casualty Co., 284

N.W. 2d 829, 823 n.1 (Minn. 1979). Likewise, in McBride v.

Galaxy Carpet Mills, 920 F. Supp. 1278 (S.D. Ga. 1995), the

district court determined that Phillips prevented the

application of Georgia law to a nationwide class action, but

only after an express finding that an “overwhelming majority

of the potential class members purchased carpeting in states

other than Georgia” and that, because of a substantive,

material conflict, applying Georgia’s law of punitive damages

“would be unfair to those plaintiffs residing outside the state

of Georgia.” /d. at 1285."

'' Petitioners’ citation to In re Bridgestone/Firestone, Inc., 288 F.3d

1012 (7th Cir. 2002), in support of their claim that any choice of law

inquiry would necessarily violate their due process rights, is clearly

inapposite. Bridgestone had nothing to do with due process; it merely

declined Rule 23 certification for a class of owners or lessees of “[ml]ore

than 60 million tires and 3 million vehicles” in all 50 states. Because

“{njo class action is proper unless all litigants are governed by the same

legal rules,” due to the “commonality and superiority requirements of Fed.

R. Civ. P. 23(a),” the court found that a class of plaintiffs who could not

all be properly subject to the laws of a single forum should not be

certified. Jd. at 1015. Of course, since the present case is not a class

action—and, indeed, the cases will ultimately be broken into small “mini-

trials” for trials on most issues—Bridgestone has no application here.

30

Petitioners have failed to present even a single substantive

issue to be tried as part of the common issues phase of the

present case on which an actual conflict between West

Virginia law and that of another relevant jurisdiction exists.

In all likelihood, there are a handful of material conflicts that

could potentially arise in connection with adjudication of the

issues to be litigated here. But, of course, at this point we,

like petitioners, are merely speculating—the only way to

determine the nature and number of relevant conflicts is to

inquire into them, and the decision that petitioners ask this

Court to review did not do so. Accordingly, it would clearly

be premature for this Court to intervene.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

CHRISTOPHER J. WRIGHT *

TIMOTHY J. SIMEONE

HARRIS, WILTSHIRE & GRANNIS LLP

1200 Eighteenth Street, N.W.

Washington, DC 20036

* Counsel of Record (202) 730-1300

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