Amicus Curiae Brief — Mobil Corp. v. Adkins

f “) FILED %

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AUS 2 8 2002

No. 02-132

IN THE

Supreme Coot of the United States

MOBIL CORPORATION AND

HONEYWELL INTERNATIONAL INC.,

Petitioners,

V.

BRUCE W. ADKINS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

MOTION FOR LEAVE TO FILE BRIEF

AND BRIEF OF 3M COMPANY AS AMICUS CURIAE

SUPPORTING PETITIONERS

STANLEY C. FICKLE ROBERT A. LONG, JR.

ANDREW J. DETHERAGE Counsel of Record

BARNES & THORNBURG ELLIOTT SCHULDER

11 South Meridian Street. COVINGTON & BURLING

Indianapolis, IN 46204-3535 1201 Pennsylvania Ave., NW

(317) 236-1313 Washington, D.C. 20004-2401

(202) 662-6000

R. KEMP MORTON

HUDDLESTON, BOLEN,

BEATTY, PORTER &

COPEN, LLP

One Bridge Place

10 Hale Street

Charleston, WV 25337 Counsel for Amicus Curiae

(304) 344-9869 3M Company

now

IN THE

Supreme Court of the United States

No. 02-132

MOBIL CORPORATION AND

HONEYWELL INTERNATIONAL INC.,

Petitioners,

Vv.

BRUCE W. ADKINS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

MOTION OF 3M COMPANY FOR LEAVE

TO FILE BRIEF AS AMICUS CURIAE

Pursuant to Rule 37.2 of the Rules of this Court, the

3M Company (“3M”), formerly known as Minnesota Mining

& Manufacturing Company, moves for leave to file the

accompanying brief as amicus curiae in support of

petitioners. Like petitioners, 3M has been named as a

defendant in the mass asbestos tort litigation in the West

Virginia state courts that is the subject of the petition. 3M

did not join in petitioners’ request for relief from the West

Virginia Supreme Court because, at the time petitioners

sought relief, the trial court had not ruled that 3M would be

grouped together with other defendants in the mass trial

proceeding on “common issues.” After the decision below,

however, the trial court determined that 3M would be

included in a “common issues” trial, and on August 12, 2002,

1

the court directed that 3M would be part of a group tral,

together with manufacturers and distributors of asbestos-

containing products, commencing six weeks later on

September 23, 2002. Thus, 3M has a strong interest in

ensuring that the state trial proceedings are conducted fairly

and with proper regard for the parties’ due process rights.

Petitioners have consented to the filing of all amicus

curiae briefs submitted to assist the Court in its consideration

of the petition, and have filed a wnitten consent with the

Court so stating. Respondents represented by Ness, Motley,

P.A. have refused to consent to the filing of any amicus

curiae briefs, and have filed a written refusal with the Court

so stating. 3M accordingly seeks leave to file the

accompanying brief as amicus curiae.

Respectfully submitted,

STANLEY C. FICKLE ROBERT A. LONG, JR.

ANDREW J. DETHERAGE Counsel of Record

BARNES & THORNBURG ELLIOTT SCHULDER

11 South Meridian Street COVINGTON & BURLING

Indianapolis, IN 46204 1201 Pennsylvania Ave., NW

(317) 236-1313 Washington, D.C. 20004-2401

(202) 662-6000

R. KEMP MORTON

HUDDLESTON, BOLEN,

BEATTY, PORTER &

COPEN, LLP

One Bridge Place

10 Hale Street

Charleston, WV 25337 Counsel for Amicus Curiae

(304) 344-9869 3M Company

TABLE OF CONTENTS

Page

ee ITE covers dastennetnnssstsniearsnvirninsiniaiveseneoronsnes i

TABLE OF AUTHORITIEG...............cssscsssssssssscessescssssssesees il

INTEREST OF AMICUS CURIAE .....ccsscssssssssssssssssssessseeseees l

REASONS WHY THE WRIT SHOULD BE

ick aethcd slice si esa ilaitheandiephiibnneheesenniinnievenweeanpiadee 2

I. The Treatment of Claims Against 3M Further

Demonstrates the Due Process Violations

Perpetrated by West Virginia’s Mass Trial

TERRE a sone to Sead OOO ee 2

Il. Punitive Damages Exacerbate the Due Process

Violation Caused by Applying West Virginia

Law to Claims Having No Connection to that

SI irish ia iisarhcasuisstacbiadiineideagicdinkenievauhsinwianitonenenennss 11

II. § This Court Should Review the Mass Tnal

I on. sselaindalereibansenieiebievatnenieebieaichs 15

I ccs scdsliciosseicbbeienaianselakchimiinecisovasiobboebine 18

'

TABLE OF AUTHORITIES

Page(s

CASES

Addair v. Huffman, 195 S.E.2d 739 (W. Va. 1973) ..........0. 18

Allison v. Citgo Petroleum Corp.,

AST FS QZ (5G CAP. ESD) q..20cccevcorsceccessrencvsesenensenovsse 12

BMW of North America, Inc. v. Gore,

Pe Shells ee aE eatapbiiesicceiteeveussevuashnincatinanabeistenniatin 14,17

Blair v. Equifax Check Services, Inc.,

IRE Fe Gee 6 Galle FID sirevacenennnnseinsniebatsreniotnanssennns 17

Buckeye Union Ins. Co. v. New England Ins. Co., 720

FR be NF ED ROT TE scciisistrnsincnespvesnnsintnentncanineanenthionensomie 13

Castano v. American Tobacco Co.,

SH PSG FSG CFG CO, TFG) ax.ccerevcnvecenisvensscesosenes 16, 17, 18

Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,

Shs ND TG A ws iatuieusiiiteipnintineientihiaiepicapeimcniilanniestins 14

Detroit & Mackinac Railway Co. v. Michigan R.R.

Commission, 240 U.S. 564 (1916).........cccccscesseesscesseeeees 15

Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897 (W.

FG. Fae mncheecaitiniisisise dk nstinaniiialicapihiiallecaasialssalecinaphanapiiieiwnens 13

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

a cinasnednetnivinsenainescsecieinabalidaasidideaibeaiadiihdaiisibiiiniiniessiinenianihe 7

Hardaway Management Co. v. Southerland, 977

a ee I SIU sicrciodesinisninbainniajpecieeinebanihecisninnbitocie 13

Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415 (1994)......5, 6

In re Bridgestone/Firestone, Inc., Tires Products

Liab. Litig., 288 F.3d 1012 (7th Cir. 2002).............. 16, 17

In re Dow Corning Corp., 86 F.3d 482 (6th Cir.

See iicisehepcbesaneauiicihsiiiinnttieh tabidaieadial itaieahdinehinilnassniibiii 16

In re Pan Am Corp., 16 F.3d 513 (2d Cir. 1994)..............000. 16

In re Rhone-Poulenc Rorer Inc.,

8 Fe CI TE es CD evtnctesccnsasstivenseninimenitsncionisan 16, 17

Jenkins v. Raymark Indus., Inc.,

TO FBG SG (SG CI, TSG ovcseecenescorenssessrenecserecssserssnees 12

il

alla

Lindsey v. Normet, 405 U.S. 56 (1972) .ssccccsssssssssssssssesssseesee 9

Mayer v. Frobe, 22 S.E. 58 (W. Va. 1895) ...........ccccceseeseeees 18

Michigan Central R.R. v. Mix, 278 U.S. 492 (1929)............ 15

Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) ..............005 6

Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md.

SUITED sieve sissies nue sbabiamiiiaaicelibiaoldaasdiliasidadiubiccateeiiunsthabivien 13

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1

(SPIE fi venssrensnssncetnnerinusenaiestinapedteianeniatciianeinanhatetanion 14

Painter v. Raines Lincoln Mercury, Inc., 323 S.E. 2d

FIG CW. Ve, BID si cscciesisssttiihininstvitassntainnnasectatninnbieneinaans 18

Phillip Morris, Inc. v. Angeletti, 752 A.2d 200 (Md.

SIP TTD .nsrsassscneeusaiissbicttaaietilisisaleiaisddeddabipeianelaskaioneesineniies 12

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ..13, 17

Scott v. Jenkins, 690 A.2d 1000 (Md. 1997) ...........ceeeeeeeeee 13

SHV Coal, Inc. v. Continental Grain Co., 587 A.2d

FOR CR: ME pa visicnsichnncsiiniecssiasniiienadactss samcabtincindebcnmscint 13

Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d

GES CH, FOO Wctvinienvnincnciiestncianstbaiaindniiipaeananieins 12

State ex rel. Allman v. MacQueen, 551 S.E.2d 369

(WE. VG. TIPE Pe osivnsseesisnusvinbensnesbilieiipeinatsasuiinalaailidmaeseds 6, 8

State ex rel. Cherry v. Burns, 602 N.W.2d 477 (Neb

RTS) -scinnivsetcosteenijeenienniaitnsciniiiitiahdiasaiindiintedialaanainadaitiisaniieaal 13

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10

CR: TID wecicrivnscciaieeciaiiaiiceiniplanepisciiiiia aaa shel 12

TXO Prod. Corp. v. Alliance Res. Corp., 419 S.E.2d

870 (W. Va. 1992), aff'd, 509 U.S. 443 (1993) ............. 13

United States v. Armour & Co., 402 U.S. 673 (1971)............. 9

United States v. Central Supply Ass’n,

© FIRED. Sab CEG aee GIRO BID orrrcerveseesiveseonsevsnncernensesonnits 7

Wright v. Everett, 90 S.E.2d 855 (Va. 1956).........cccesseseeeees 13

STATUTES, REGULATIONS AND RULES

SO i i 15

ST WI uric enn cconninacenamadcicias oma 16

29 CFR. § 1910.93a(C)(2) (1972) ..ssessccssseecesecsessscssssseesseessees 3

iii

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POG, Bhs GAY. Bs Biiviicinictaccsicessvihnientedievintnnennnalianiaaiaiaaa 8

PO. TR, CRs Fe Bteentiisstctaianinsnigueriiinnnnemmnitalis 16

POG. Bis G00. Fs Sibsnvnsossnnsnaserssessencosnnspenvnccimansinvscameneenaniinaton 8

RY. TV. BUR, Aa. § ALG DG sivecvsesccnineornssecsenvinsosettanensatons 12

DUA). GOR, SRG: FI © TD is resicesccescocserscreccsevenssevscieninehioines 13

INC, Goan, GRE, FE Bir cceceniocionvenssivernevensstnitnnaisiinhth 12

VR. COGS BER, SEE E nencccsrierctineetsinibniapessvtianmiiineataninee 13

_ MISCELLANEOUS

Melissa A. Waters, Common Law Courts in an Age of

Equity Procedure: Redefining Appellate Review

for the Mass Tort Era, 80 N.C. L. Rev. 527

(BORED. oncconiesinivameminnnelorensvenretessoniincnmmniatninamienbatetnede 16

Charles Alan Wright, Joinder of Claims and Parties

Under Modern Pleading Rules,

SO BERRA, 1. ROG. FE (EPO) ovicresseineinenseneenninneenevitaninies 7

IN THE

Supreme Court of the United States

No. 02-132

MOBIL CORPORATION AND

HONEYWELL INTERNATIONAL INC.,

Petitioners,

Vv.

BRUCE W. ADKINS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

BRIEF OF 3M COMPANY AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF AMICUS CURIAE

3M Company (“3M”) is a defendant in the mass

asbestos trial underlying the wnt proceeding in the West

Virginia Supreme Court of Appeals that is the subject of the

petition for certiorari.’ 3M has been sued in the West

Virginia asbestos cases not as a manufacturer or distributor

' Pursuant to Rule 37.6, counsel certifies that no counsel for any party

authored this brief in whole or in part, and no person or entity, other than

3M, made a monetary contribution to the preparation or submission of the

brief.

of asbestos containing products, or as a premises owner or an

employer, but instead as a manufacturer of respiratory

protection products that contained no asbestos. 3M submits

this brief as amicus curiae because, as explained below, it

was not included in the mass trial at the time the West

Virginia Supreme Court of Appeals heard Mobil

Corporation’s petition for a writ of mandamus or prohibition.

3M, therefore, was not a party to the Mobil writ proceeding.

On May 6, 2002, after the decision below by the West

Virginia Supreme Court of Appeals, the trial court issued a

ruling that the claims against 3M would be included in the

mass trial scheduled for September 23, 2002. 3M thus has a

strong interest in whether the mass trial complies with the

requirements of due process.

REASONS WHY THE WRIT SHOULD BE GRANTED

I. THE TREATMENT OF CLAIMS AGAINST 3M

FURTHER DEMONSTRATES THE DUE

PROCESS VIOLATIONS PERPETRATED BY

WEST VIRGINIA’S MASS TRIAL

PROCEDURE.

The underlying asbestos mass trial proceeding

involves claims by thousands of plaintiffs.? The claims

collectively include hundreds of different asbestos-containing

products which allegedly were used at hundreds of

employment sites located in many different States. With the

exception of 3M, plaintiffs have sued companies they allege

(a) manufactured, supplied, distributed or installed products

containing .asbestos; (b) are liable under a premises liability

2 No one knows exactly which cases are involved in the mass trial

proceeding scheduled for September 23, 2002. Parties have estimated

that the mass trial may involve as many as 10,000 cases, and

approximately 2,000 cases against 3M are included.

theory based on the presence of asbestos at their facilities;

and/or (c) are liable as an employer based on the plaintiffs

exposure to asbestos during his or her employment.

Unlike the other defendants, 3M was sued over

respiratory protection products. Plaintiffs allege that two 3M

products are at issue, a respirator known as the Model 8710

and a nuisance dust mask known as the Model 8500. These

two products are entirely different in terms of materials,

design, purpose, and use. However, neither product

contained any asbestos.”

The subject of Mobil’s writ proceeding and the

decision below is the trial court order requiring a mass trial,

which was entered on February 26, 2002 (the “Tnial

Scheduling Order”). The Trial Scheduling Order requires

three “Phase I” trials of supposed “common issues” to

> 3M’s Model 8710 respirator was designed to reduce (not eliminate) a

user’s exposure to airborne asbestos. It was certified by the National

Institute of Occupational Safety and Health (“NIOSH”) for that purpose

in 1972. See 30 C.F.R. part 11 (1972). The Model 8710 respirator was a

member of one class of respirators that federal regulations under the

Occupational Safety and Health Act required to be used starting in the

early 1970s in certain workplace environments, where specified levels of

airborne asbestos were present, to reduce exposure levels below those

prescribed by the Occupational Safety and Health Administration

(“OSHA”). See 29 C.F.R. § 1910.93a(c)(2) (1972). Under the OSHA

scheme, different classes or types of respirators were required based on

increasing levels of airborne asbestos in a workplace.

The Model 8500 nuisance dust mask, in contrast, was not

designed for use around asbestos. Instead, it was designed only to

provide some level of filtering for non-toxic, nuisance dusts. After the

OSHA respiratory protection regulations were promulgated in 1971, use

of Model 8500 nuisance dust masks to reduce exposure to asbestos in a

workplace not only would have been contrary to the design and purpose

of the product, but also contrary to the federal regulations governing

OSHA regulated workplaces.

determine “fault” (as to products, whether they were

“defective”). These Phase I trials divide defendants into

three groups: (1) asbestos containing product manufacturers

and distributors, (2) premises liability defendants, and

(3) employer defendants, with the “fault” of the defendants in

each group tried to separate juries. The Trial Scheduling

Order also contemplates later “Phase IT” trials to new juries,

to decide causation and damages issues for individual

plaintiffs. Under the Trial Scheduling Order, the new juries

for the Phase II proceedings will receive instructions

specifying the Phase I jury’s verdict as to each defendant in

each Phase II trial.

Given the unique nature of the claims against 3M and

its respiratory protection products, the Trial Scheduling

Order did not include those claims in the Phase I “common

issues” trials. 3M subsequently asked the trial court to

clarify 3M’s status, and particularly to clarify that all issues

as to 3M would be tried in the Phase II trials. Instead,

however, the trial court announced on May 6, 2002 (a few

days after the West Virginia Supreme Court of Appeals’

decision on Mobil’s writ petition) that 3M would be included

in a Phase I trial. The court did not at that time identify any

“common issues” as to 3M that could be tried, nor did it say

whether the 3M mask and respirator claims would be

included in one of the existing trial groups (i.e., asbestos

containing products, premises owners, employers) or in a

separate trial group for respiratory protection products.

Because 3M believes that the mask and respirator

claims do not involve any “common issues” that can be

decided in a bifurcated proceeding by one jury and used by a

different jury to determine liability, 3M asked the trial court

to specify the questions that would be presented to the jury.

Because 3M believes there are no common issues as between

the claims against 3M and those against manufacturers and

distributors of asbestos containing products, premises

owners, or employers, 3M also asked the trial court to place

4

3M in its own (respiratory protection products) Phase I trial

group. 3M did not receive a definitive answer from the trial

court until August 12, 2002 — 42 days before the mass trial is

scheduled to begin.

At the August 12, 2002 hearing the trial court ruled

that the claims involving 3M’s masks and respirators would

not be tried to a separate Phase I jury, but rather to the same

jury as the claims against manufacturers and distributors of

asbestos containing products. Thus, claims against 3M’s

non-asbestos containing respiratory protection products will

be tried in a supposed “common issues” trial not with other

respiratory protection products, but instead with hundreds of

asbestos containing products - products which are

themselves of dramatically different types. As demonstrated

by the petition and other briefs supporting the petition, the

sheer number of products and defendants and the mass of

evidence the jury will have to assimilate for hundreds of

different asbestos containing products over more than thirty

years in order to make product defect and time period

determinations (as well as punitive damages determinations)

for each product are simply staggering. Now, in the context

of that same mass trial of hundreds of asbestos containing

products, 3M must defend its Model 8710 respirator and

Model 8500 nuisance dust mask — products which do not

contain asbestos and which are themselves entirely different

products from each other.

This Court laid out a basic framework for due process

analysis in Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415

(1994). Where traditional common-law procedures

“provide[] protection against arbitrary and inaccurate

adjudication,” a State’s abrogation of that protection “raises a

presumption that its procedures violate the Due Process

Clause.” Jd. at 430. The presumption is overcome only

where (1) the State provides a reasonably adequate

“substitute for the protection provided by” the traditional

procedure, or (2) social or other changes have made the

5

procedural protection unnecessary. Jd. at 431. Employing

that analysis, Oberg held that Oregon violated the Due

Process Clause by abrogating judicial review of punitive

damages awards for excessiveness. Id. at 432-35; see also id.

at 435-36 (Scalia, J., concurring); Nelson v. Adams USA, Inc.,

529 U.S. 460, 467 & n.1 (2000) (while Fed. R. Civ. P. 15 is

not “itself a constitutional requirement,” a party “cannot,

consistently with due process,” be deprived of the core

procedural protections provided by that Rule).

The decision below upholds the aggregation and joint

trial of thousands of unrelated claims against well over 100

defendants and several hundred products (the exact numbers

being presently unknown) and does so regardless of jury

confusion and other prejudice. This novel procedure, which

the West Virginia Supreme Court of Appeals calls

“conjoin[{der]” (Pet. App. 10a, 13a) and holds is authorized

by its new Trial Court Rule 26.01, is an elementary violation

of the Oberg test. It abrogates traditional procedural

safeguards limiting the aggregation of parties and claims as

necessary to permit rational decisionmaking by the jury, and

it provides no substitute protection of any kind.* Nor is there

any question about the continuing need for the procedural

Any implication in the decision below that “the existence of common

factual and/or legal issues” permitting these thousands of cases to “be

grouped together for trial purposes” was determined at the time the cases

were referred to the state Mass Litigation Panel, see Pet. App. 13a, is

unfounded. The referral order (issued by a single justice) noted the lack

of “specific litigation plans for the variety of cases that have been

consolidated in this referral,” and ordered a procedure “to develop

specific rules and strategies to deal with the disposition of these cases.”

Administrative Order Re Mot. to Refer Asbestos Litig. to the Mass Litig.

Panel 2, 3-4 (W. Va. Nov. 17, 2000) (Maynard, C.J.) (“Referral Order”).

The West Virginia Supreme Court of Appeals itself said in its first

decision after the Referral Order that “no decision has been reached as to

whether mass trials will be held or not.” State ex rel. Allman v.

MacQueen, 551 S.E.2d 369, 373 (W. Va. 2001).

<— Er

protection against confusion and prejudice. To the contrary,

that protection is even more sorely needed at this advanced

stage of the asbestos litigation saga, where many plaintiffs’

counsel in their quest for still-solvent companies assert

claims against ever more peripheral parties.

Under the procedural systems that evolved during the

last century, it is commonplace “that it is desirable to include

as many claims and parties as there are in one suit, except

where this may make the suit too many-sided and

complicated for the jury to unravel, or where this free joinder

may cause prejudice to some party or claim.” Charles Alan

Wright, Joinder of Claims and Parties Under Modern

Pleading Rules, 36 Minn. L. Rev. 580, 581 (1952) (emphasis

added).” Thus, all of the basic aggregation devices under the

Federal Rules of Civil Procedure — joinder of claims and

parties, class actions, and consolidation of actions — contain

procedural protections against the. confusion and prejudice

that would result from an unfettered use of these devices.

For example, joinder of parties is limited by requiring both

> See, e.g., Gwathmey v. United States, 215 F.2d 148, 155-56 (Sth Cir.

1954) (joint trial of condemnation actions involving valuation of 236

tracts of land with many owners violated due process; “the very size of

the case as tried, without the additional complexities, was such that the

jury must have been overwhelmed. In fact, 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.”); United States v.

Central Supply Ass’n, 6 F.R.D. 526, 534 (N.D. Ohio 1947) (granting

judgments of acquittal at close of prosecution’s case after three and a half

months of trial in a criminal case involving 76 defendants; “To believe

that an ordinary jury could hold in mind the names and identities of all

the defendants and segregate and classify all the different bits of

evidence, requires a faith and confidence in the human intellect which

experience does not support. Faith that the verdict in such a case would

be rational and fair, would have to be based on a blind trust in ritual

contrary to all experience of possibilities.”). The Central Supply court’s

dramatic description of the trial in that case, see 6 F.R._D. at 533-34, pales

in comparison to the mass trial the West Virginia courts have ordered.

claims arising out of the same transaction or occurrence (or

series thereof) and a question of law or fact common to all

persons joined. Fed. R. Civ. P. 20(a). Issues of confusion

and prejudice resulting from joinder of claims and parties are

further addressed by giving tnal courts broad authority to

order (1) severance of parties and claims, and (2) separate

trials of claims and issues. Fed. R. Civ. P. 20(b), 21, 42(b).

The same cannot be said for West Virginia’s

“conjoinder” procedure. That mass trial procedure permits

the aggregation and joint trial of thousands of claims against

hundreds of products and many scores of defendants, and

does so without even the most cursory scrutiny of the

dangers of confusion and prejudice. Such matters are not a

subject of inquiry. See Pet. App. at 9a-13a. As the decision

below reiterates, “because the provisions of TCR 26.01

control the underlying civil action, we do not view this

matter as one affected by case law interpreting the various

rules of civil procedure, including Rules 20, 23, or 42, which

respectively address issues of joinder, class action, and

consolidation.” Pet. App. 4a (quoting Allman, 551 S.E.2d at

374). As a consequence, no analysis or even mention of

issues of prejudice and confusion was made when, after the

decision below, the trial court tossed the claims against 3M’s

respiratory protection products into the Phase I mass trial of

claims against hundreds of different asbestos-containing

products. Nor did the court identify any true “common

issue” as between these respiratory protection products and

the asbestos containing products.

Other due process violations, not directly raised by

Mobil’s petition, arise from the mass trial treatment of claims

against 3M. For example, the trial court (as well as the West

Virginia Supreme Court of Appeals in denying Mobil’s writ

petition) has never explained when and how defendants will

be able to try affirmative and other defenses. West Virginia

law also provides for a comparative fault defense, but the

court has not explained how a defendant will have a

8

meaningful opportunity to litigate this defense. The Phase I

jury will not hear evidence about individual plaintiffs or their

conduct. The Phase II jury will not hear “fault” evidence

about defendants (evidence required to make a meaningful

comparison to evidence about the plaintiff's fault) unless the

evidence presented in the Phase‘ trial is presented again to

each Phase II jury, which would defeat entirely the ostensible

purpose of the Phase I mass trial.

More generally, the trial court never has explained

how this two-phase trial can be conducted, consistent with

due process, as to the claims against 3M without presenting

in Phase II all of the evidence presented in Phase I. If the

Phase II jury is only instructed that the Phase I jury found a

respiratory protection product was “defective,” the plaintiffs

would be relieved of proving an essential element of their

claims in the individual Phase II trials — i.e., that the aspect

of the product the Phase I jury found defective was the cause

of an individual plaintiff's harm. Likewise, 3M would be

precluded from establishing a defense that the defect did not

cause the plaintiff any injury in the circumstances of the

plaintiff's use of the product. Furthermore, any instruction

that a product has been found “defective,” even if it could

describe the reasons for the defect finding, would be

enormously prejudicial in a Phase II trial. |

The “right to litigate the issues raised” and present

defenses are basic “right[s] guaranteed . . . by the Due

Process Clause” of the Fourteenth Amendment to the United

States Constitution. United States v. Armour & Co., 402

U.S. 673, 682 (1971); see also, e.g., Lindsey v. Normet, 405

U.S. 56, 66 (1972) (“Due process requires that there be an

opportunity to present every available defense”) (citation

omitted). The mass trial procedures contain no explanation

how these due process rights can, or will, be protected,

particularly for respiratory protection products.

This treatment of the claims against 3M further shows

that West Virginia asbestos litigation is an abyss, with

procedures so flawed and unfair that hundreds of defendants

will have little practical choice but to settle with thousands of

plaintiffs — most of whom likely are not impaired and never

used or were injured by the particular defendant’s products.°

For the sake of a large segment of the Nation’s economy,

jobs, and retirement accounts, this Court should grant review

and enforce basic federal constitutional limits on the West

Virginia judicial system.

As Justice Maynard pointed out in his separate

opinion below, the procedures fashioned by the West

Virginia courts have operated as a magnet, attracting many

non-West Virginia plaintiffs who “have migrated here

because of the asserted pro-plaintiff bias with which Mobil

claims this State handles asbestos litigation.” Pet. App. 21a.

The result is a vicious cycle in which the adoption of unfair

mass trial procedures generates the filing of still more claims,

leading to further efforts to deny the defendants’ rights to due

process.

° One of the features of the West Virginia asbestos mass trial proceeding

is that the defendants have not been allowed to conduct discovery as to

individual plaintiffs, and the plaintiffs have not been required to provide

meaningful disclosure as to the product(s) they actually used or to which

they were exposed. Accordingly, 3M has been precluded from learning

which of the nearly 2,000 plaintiffs asserting claims against it actually

used a 3M product, the product that allegedly was used, and where and

when it was used.

10

Il. PUNITIVE DAMAGES EXACERBATE THE

DUE PROCESS VIOLATION CAUSED BY

APPLYING WEST VIRGINIA LAW TO

CLAIMS HAVING NO CONNECTION TO

THAT STATE.

The petition presents, as a second issue, the due

process violation that results from applying West Virginia

law to claims that have no contacts with West Virginia. As

Justice Maynard also noted, the mass trial includes the claims

of thousands of plaintiffs who “are not West Virginia

residents and were never exposed to asbestos in this state.”

Pet. App. 21a. At the August 12, 2002 hearing, the trial court

confirmed that West Virginia law will be applied to the

claims of all plaintiffs, including those who neither lived nor

worked in West Virginia and had no other connections to the

State. The court stated: “We understand the argument made

regarding the choice of law. We understand that there may

be Plaintiffs that absolutely have no nexus whatsoever... .

But . . . we are going to apply West Virginia law in all

aspects of the first phase of this trial.” 8/12/02 Hearing Tr.

172.

The trial court also ruled at the August 12 hearing that

the Phase I trials will include a punitive damages finding and

use of a “punitive damages multiplier.” | Under this

procedure, the Phase I jury will determine whether each

defendant is responsible for punitive damages and, if so, a

number by which the Phase II jury’s compensatory damages

award will be “multiplied” to determine the amount of

punitive damages. The Phase I jury will make its findings on

punitive damages and fix the multiplier without evidence of

any plaintiffs injury, the amount of the compensatory

damages awarded to any plaintiff (or in total), or the

circumstances of any plaintiffs product use.

As discussed below, these rulings rachet up the

pressure to settle on any company named as a defendant in

11

these cases. In combination, these two rulings also magnify

the due process violation perpetrated by the mass tial

proceeding.

With respect to choice of law and the punitive

damages multiplier specifically, to our knowledge, no

appellate court of any other State has permitted use of that

procedure. Maryland’s highest court has rejected its use

under Maryland substantive law. See Phillip Morris, Inc. v.

Angeletti, 752 A.2d 200, 249 (Md. 2000). Use of the

punitive damages multiplier is also illegal under Texas law,

which forbids any determination of punitive damages

liability until compensatory damages are established. See

Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425,

432-39 (Tex. 2000). The multiplier procedure also violates

the laws of Kentucky and North Carolina, which require that

compensatory damages be tried first, and/or that the same

jury decide both compensatory and punitive damages. See

Ky. Rev. Stat. Ann. § 411.186; N.C. Gen. Stat. Ann. § 1D-

30; see also Transportation Ins. Co. v. Moriel, 879 S.W.2d

10, 30 & n.28 (Tex. 1994) (discussing similar statutes in 13

other States).’

More generally and quite apart from use of the

multiplier, there are major differences among States’ punitive

damages laws. Not the least of these differences is the very

conduct required for the imposition of any punitive award.

For example, although “gross negligence” is sufficient to

’ The leading authority supporting use of a punitive damages multiplier

was Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (Sth Cir. 1986), which

held it permissible under Texas substantive law (the governing law in

Jenkins). Id. at 474. The Texas Supreme Court’s decision in

Southwestern Refining shows that Jenkins’ view of Texas law was

incorrect. 22 S.W.3d at 432-33. The Fifth Circuit itself rejected (under

federal law) a similar procedure that would allow punitive damages

liability to be determined before compensatory damages. Allison v. Citgo

Petroleum Corp., 151 F.3d 402, 417-18 (Sth Cir. 1998).

12

support punitive damages under West Virginia law,® the laws

of many States - among them Pennsylvania, Virginia,

Maryland, and North Carolina - do not allow punitive

damages to be awarded for conduct that is only grossly

negligent.” Similarly, West Virginia does not require proof

of actual malice for punitive damages, '° while other States

such as Maryland and Ohio do.'' Other significant

differences in state laws regarding punitive damages range

from total prohibition’? and damage caps’? to the relevance

and admissibility of financial condition evidence.'* In short,

there are multiple levels of significant conflict among state

punitive damages laws relevant to the claims involved in the

mass trial here.

Accordingly, West Virginia’s insistence on applying

its law to the claims of plaintiffs having no connection to that

State violates due process in more ways than one. As to

punitive damages, that use of West Virginia’s law conflicts

not only with Phillips Petroleum Co. v. Shutts, 472 U.S. 797

* TXO Prod. Corp. v. Alliance Res. Corp., 419 S.E.2d 870, 877-87 (W.

Va. 1992), aff'd, 509 U.S. 443 (1993).

” See, e.g., Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 652 (Md.

1992); SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 705 (Pa.

1991); Wright v. Everett, 90 S.E.2d 855, 858 (Va. 1956); N.C. Gen. Stat.

Ann. § 1D-5(7).

'° TXO, 419 S.E.2d at 887.

'" Scott v. Jenkins, 690 A.2d 1000, 1003-04 (Md. 1997); Buckeye Union

Ins. Co. v. New England Ins. Co., 720 N.E.2d 495, 501 (Ohio 1999).

'? See, e.g., State ex rel. Cherry v. Burns, 602 N.W.2d 477, 484 (Neb.

1999).

'? See, e.g., Va. Code Ann. § 8.01-38.1.

'* Compare Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897, 909 (W.

Va. 1992) (“relevant”), with Hardaway Management Co. v. Southerland,

977 S.W.2d 910, 916 (Ky. 1998) (“may not present evidence or otherwise

advise the jury”).

13

(1985), but also with this Court’s decision that a State may

not apply its punitive damages law to punish conduct that

was lawful in the State where it occurred. BMW of North

Am., Inc. v. Gore, 517 U.S. 559, 570-73 (1996).'°

The punitive damages multiplier also independently

violates the Due Process Clause. Under that procedure, the

jury that determines punitive damages liability and sets the

multiplier does so without knowing the actual harm that a

defendant’s conduct caused to any individual plaintiff, or

collectively to all plaintiffs. This violates the requirement

that the reasonableness of a punitive award be evaluated in

the light of actual harm caused by the defendant’s conduct.

See Gore, 517 U.S. at 580-81; Cooper Indus., Inc. v.

Leatherman Tool Group, Inc., 532 U.S. 424, 440-41 (2001).

Even more fundamentally, the punitive damages

multiplier violates due process in that neither the amount of

punitive damages appropriate in any case nor its impact on

the defendant is ever determined by any jury. Under the

procedure, no jury ever decides the amount of a punitive

award. Rather, one jury sets an abstract multiplier, another

determines the compensatory award and someone

mechanically does the math. The result is that no jury ever

decides whether the amount of punitive damages assessed

against the defendant — either as to the individual plaintiff or

collectively — is necessary for punishment and deterrence.

This approach radically departs from the traditional

procedure for assessing punitive damages, and from the

traditional justifications for imposing such damages. See

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991).

'S In Gore, this Court also noted (without deciding) the issue “whether

one State may properly attempt to change a tortfeasor’s unlawful conduct

in another State.” 517 U.S. at 573 n.20 (emphasis in original).

14

Iil. THIS COURT SHOULD REVIEW THE MASS

TRIAL DECISION NOW.

The decision below unquestionably is a “final

judgment[] or decree[]” for purposes of this Court’s

jurisdiction under 28 U.S.C. § 1257(a). Under this Court’s

longstanding precedents, a decision by a state supreme court

granting or denying a writ of mandamus or prohibition is a

“final” decision within the meaning of § 1257(a) and

predecessor statutes. Pet. 27; Michigan Central R.R. v. Mix,

278 U.S. 492, 494 (1929) (“The application for the writ of

prohibition was denied [by the Supreme Court of Missouri]

without an opinion. That judgment is final within the

meaning of § 237(a) of the Judicial Code.”).'®

It is appropriate and important that this Court grant

review at this point in the underlying mass trial litigation. As

petitioners argue, abusive aggregations of tort claims present

Armageddon scenarios, in which defendants may be —

indeed, are intended to be — effectively compelled to settle

non-meritorious and marginal claims. If the tactic is

'© See also, e.g., Detroit & Mackinac Ry. Co. v. Michigan R.R.

Comm'n, 240 U.S. 564, 570-71 (1916):

Our jurisdiction is called in question upon the ground

that the judgment is not final in the sense of § 237,

Judicial Code, upon which our power to review

depends, because the judgment does not determine the

merits and end the litigation. But, as this court has said,

“all judgments and decrees which determine the

particular cause” are final in the sense of the statute.

This view has prevailed through a century of practice in

reviewing judgments and decrees dismissing causes for

want of jurisdiction or for other reasons not decisive of

the merits. And it is settled that a proceeding in

mandamus is an independent adversary suit and a

judgment awarding or refusing the writ is a final

judgment within the meaning of statute.

15

successful, as it typically has been in the absence of pre-trial

appellate review, the result is to avoid appellate review

altogether. Federal courts of appeals have become

increasingly aware of this evolving mass litigation

phenomenon, and therefore increasingly willing to grant

interlocutory review before the irreparable harm occurs and

appellate review is_ evaded. ma tt @

Bridgestone/Firestone, Inc., Tires Products Liab. Litig., 288

F.3d 1012 (7th Cir. 2002) (Easterbrook, J.) (interlocutory

review under Fed. R. Civ. P. 23(f)); In re Dow Corning

Corp., 86 F.3d 482, 487-88 (6th Cir. 1996) (collateral order

doctrine); Castano v. American Tobacco Co., 84 F.3d 734

(Sth Cir. 1996) (interlocutory review under 28 U.S.C.

§ 1292(b)); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293

(7th Cir. 1995) (Posner, C.J.) (mandamus); Jn re Pan Am

Corp., 16 F.3d 513 (2d Cir. 1994) (collateral order doctrine);

see also Melissa A. Waters, Common Law Courts in an Age

of Equity Procedure: Redefining Appellate Review for the

Mass Tort Era, 80 N.C. L. Rev. 527, 554-84 (2002).

Rhone-Poulenc involved a situation similar to this

one, with an unlawful aggregation of claims, 51 F.3d at

1302-04, and use of a single negligence standard rather than

the actual tort law of the 50 States, id. at 1300-02. Ruling

that pre-trial review by writ of mandamus was appropriate

and necessary, Chief Judge Posner reasoned that:

It is true that [the first phase of the bifurcated

trial] would only be prima facie liability, [and]

that the defendants would have various

defenses [to assert in later proceedings]. But

they could not be confident that the defenses

would prevail. They might, therefore, easily

be facing $25 billion in potential liability

(conceivably more), and with it bankruptcy.

They may not wish to roll these dice. That is

putting it mildly. They will be under intense

pressure to settle. If they settle, the class

16

certification — the ruling that will have forced

them to settle — will never be reviewed. Judge

Friendly, who was not given to hyperbole,

called settlements induced by a _ small

probability of an immense judgment in a class

action “blackmail settlements.”

51 F.3d at 1298 (citations omitted).'’ The blackmail threat is

no less real in this mass asbestos litigation.

Manipulation of choice of law rules and illegal use of

a single law to govern multi-state claims is a device

frequently employed in coercing “blackmail settlements.”

See Bridgestone/Firestone, 288 F.3d at 1016-18; Rhone-

Poulenc, 51 F.3d at 1300-01; cf Castano, 84 F.3d at 741-44.

Here, the West Virginia courts are racheting the pressure

created by that device still further, applying West Virginia’s

punitive damages law and a “multiplier” to all plaintiffs and

claims in contravention of this Court’s holdings in Gore as

well as Shutts.'* Unlike Bridgestone/Firestone, Rhone

'” See also Bridgestone/Firestone, 288 F.3d at 1015-16 (“[a]ggregating

millions of claims on account of multiple products manufactured and sold

across more than ten years makes the case so unwieldy, and the stakes so

large, that settlement becomes almost inevitable — and at a price that

reflects the risk of a catastrophic judgment as much as, if not more than,

the actual merit of the claims”); Castano, 84 F.3d at 746 (“Class

certification magnifies and strengthens the number of unmeritorious

claims. ... In addition to skewing trial outcomes, class certification

creates insurmountable pressure on defendants to settle .... These

settlements have been referred to as judicial blackmail.”); Blair v. Equifax

Check Services, Inc., 181 F.3d 832, 834 (7th Cir. 1999) (Easterbrook, J.)

(noting that “empirical studies” support the view that class actions are

commonly used “to wring settlements from defendants whose legal

positions are justified but unpopular”’).

'® In truth, the West Virginia courts are not even applying normal West

Virginia law, but rather a special punitive damages law crafted solely for

mass trials. For example, under normal West Virginia law, the jury must

consider whether any punitive damages are necessary in light of the

(...continued)

17

Poulenc and Castano, however, this mass litigation is in state

rather than federal court. In this instance, this Court is the

only federal appellate court able to vindicate the Supremacy

Clause and due process guarantees of the federal

Constitution. Particularly given that there is no “final

judgment” jurisdictional issue, this Court should grant review

and do so.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

STANLEY C. FICKLE ROBERT A. LONG, JR.

ANDREW J. DETHERAGE Counsel of Record

BARNES & THORNBURG ELLIOTT SCHULDER

11 South Meridian Street COVINGTON & BURLING

Indianapolis, IN 46204 1201 Pennsylvania Ave., NW

(317) 236-1313 Washington, D.C. 20004-2401

(202) 662-6000

R. KEMP MORTON

HUDDLESTON, BOLEN,

BEATTY, PORTER &

COPEN, LLP

One Bridge Place

10 Hale Street

Charleston, WV 25337 Counsel for Amicus Curiae

(304) 344-9869 3M Company

amount of compensatory damages awarded. See, e.g., Painter v. Raines

Lincoln Mercury, Inc., 323 S.E.2d 596, 598-99 n.2 (W. Va. 1984); Addair

v. Huffman, 195 S.E.2d 739, 743 (W. Va. 1973); Mayer v. Frobe, 22 S.E.

58, 63 (W. Va. 1895). The multiplier procedure makes this impossible,

because the jury determines whether punitive damages should be awarded

and a multiplier without knowing the amount of any compensatory

award.