# Opposition Brief — Mobil Corp. v. Adkins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0153%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2002 - **Citation:** 537 U.S. 944 ## Text 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) . 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 LOPLI EE ITIL I IEEE TR COLL NS YA ANE TONNE NE | RN EE RAT MOET NEE, MINTS AT BRE eg or PC RN OTP RIPE II * ORT --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0153%3A06. Public record. Not legal advice.