Opposition Brief — Union Carbide Corp. v. Recht

Supreme Court, U.S.

FILED

SEP 292003

t

No. 03-319 = | opricE OF THE CLERK |

IN THE

Supreme Court of the Anited States

UNION CARBIDE CORP.,

Petitioner,

¥,

THE HONORABLE ARTHUR M. RECHT, ef al.,

Respondents.

On Petition for 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, DC 20036

* Counsel of Record (202) 730-1300

Additional Counsel Listed on Inside Cover

TL NE LE NT SS A STS

SR NN eA As AARNE AEA ESERP ET PLEATS IRE ELIE LGN IR ELE LINE LAP DEEL DA LEIDER LOT

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

JAMES F. HUMPHREYS RONALD MOTLEY

J. DAVID CECIL ANNE MCGINNESS KEARSE

JAMES A. MCKOWEN MOTLEY RICE, LLC

JAMES F. HUMPHREYS & 28 Bridgeside Boulevard

ASSOCIATES, LC Mount Pleasant, SC 29465 :

United Center, Suite 800 (843) 216-9000 b

500 Virginia Street, East

Charleston, WV 25301

(304) 347-5050

JOHN SKAGGS

LAW OFFICES OF STUART

CALDWELL

405 Capitol Street, Suite 607

Charleston, WV 25301

(304) 343-4323

TABLE OF CONTENTS

Page

I PUR CB RIIEE FOOD hsvsesvsesvesensiinssancoavseoseesesieos ii

PRA UNO PE CRUE A Pa oisseseevicssssveconnvonsonsescsessenss I

REASONS FOR DENYING THE PETITION.............. 12

I. THE INTERLOCUTORY DECISION OF

THE STATE SUPREME COURT IS NOT A

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

Il. THE FIRST QUESTION PRESENTED

DOES NOT MERIT REVIEW...............000sc0000e 15

Ill. THE SECOND QUESTION PRESENTED

DOES NOT MERIT REVIEW.................ss00s000. 19

IV. THE THIRD QUESTION PRESENTED

DOES NOT MERIT REVIEW.................csccscsees 22

A. Union Carbide Had A Meaningful (And

Indeed, Lengthy) Opportunity To Be

Pls aiinseivcsaiibinenediibticuitedietiianeieiasanrniioasiniusin 22

B. Petitioner Has Not Properly Presented Its

“Choice-Of-Law” Issue Either To The

West Virginia Courts Or To This Court ...... Pa

V. THE FOURTH QUESTION PRESENTED

DOES NOT MERIT REVIEW................s0ccse000 27

I naeiasicksiovsgsticesibatihirneheitpeinexuitdanisaieesousounnsdsnns 28

(i)

il

TABLE OF AUTHORITIES

CASES Page

ACandS v. Godwin, 667 A.2d 116 (Md. 1995)...... 4

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

{.. [) A secidieecinnisesdgaseeiababeeaeamiaaaadtas 4 a0

Bandini Co. v. Superior Court, 284 U.S. 8

EIT Rictuchachisacibeonshissantaennienamiamudeanamnanaann 13,14

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

CE isesisshnienaenicsiienselslaidcnsadeebimactauiiia cmantabalacc. 19

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

IIT Fall cichaiessishsiienstidsmiedechenanaateheeisideahemataildpelaiionts 14

Fisher v. District Court, 424 U.S. 382 (1976)....... 13,14

Jefferson v. City of Tarrant, 522 U.S. 74 (1997)... 12, 14

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

(FFP Pv cinsinnantaccncictachesnuiisbacicgneiteslandade denbiaiaaamialadamaiies 13, 14

Mayles v. Shoney's, Inc., 405 S.E.2d 15 (W. Va.

ED -sncisicinesisienaasiabinddbameciurtiiaaasiietiieaedinueaiigaiae 28

Mobil Corp. v. Adkins, 537 U.S. 944 (2002) ......... 7,24

North Dakota Pharmacy Board vy. Snyder's

Staves, 444 US. EGG CUGTI) cscsessssnsserseorssssvemesis 13

Phillips v. Shutts, 472 U.S. 797 (1985)... 21, 26, 27

State Farm Mut. Auto. ins. Co. v. Campbell, 123

Bi Se Rea LD hihiteissinsbineonitibentaeabinsiansiendeiineneiaaiatin 16-20

West Virginia ex rel. Allman v. MacQueen, 551

Seeds Pe a «Wis: Se Picetvinniceipiesnnnnteansennaanei 4,6

West Virginia ex rel. Appalachian Power Co. v.

MacQueen, 479 S.E.2d 300 (W. Va. 1996)....... 3,4, 6

IN THE

Supreme Court of the United States

No. 03-319

UNION CARBIDE CorpP.,

Petitioner,

Vv.

THE HONORABLE ARTHUR M. RECHT, et al..

Respondents.

Petition for Writ of Certiorari to the

Supreme Court of Appeals of West Virginia

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioner’s “Statement of the Case” conveys a misleading

impression of events before the West Virginia courts. Most

significantly, petitioner elides almost entirely the important

fact that the so-called “mass trial” that allegedly deprived

Union Carbide of its due process right to defend itself had

narrowed to only a single defendant (Union Carbide) by the

time the defense presented its case to the jury. Accordingly,

contrary to petitioner’s arguments, the “Phase I” trial of

issues common to plaintiffs suing Union Carbide provided

the company an ample—indeed, generous—opportunity to

defend itself. Moreover, future phases of the proceedings

will allow the company to litigate causation and damages as

to specific plaintiffs. In short, a more complete under-

2

standing of the proceedings before the West Virginia courts

leaves no doubt that intervention by this Court is neither

necessary nor desirable at this interlocutory stage.

1. Background of West Virginia Trial Court Rule 26.01.

This Court has observed that our country is in the midst of

an asbestos-litigation crisis. See Amchem Prods. Inc. v.

Windsor, 521 U.S. 591, 597 (1997). This litigation crisis

results from an asbestos health crisis due to the continued

manufacture and industrial use of asbestos long after its

deleterious effects on human lungs became known.

Contrary to Union Carbide’s baseless assertion, however,

asbestos plaintiffs have not “fiocked,” see Union Carbide

Petition for Writ of Certiorari (May 9, 2003), at 2 (“Pet.’’), to

West Virginia as a result of the state’s effective trial man-

agement procedures. Rather, asbestos litigation is naturally

concentrated in areas—including West Virginia—with high

levels of asbestos-related disease and mortality.’ This peti-

tion relates to asbestos use at five plants located in West

Virginia (at South Charleston, Institute, Alloy, Technical

Center, and Sistersville) and one plant in Marietta, Ohio,

directly across the Ohio River from Parkersburg, West

Virginia.”

As a result of high levels of industrial asbestos use at these

and other West Virginia facilities, the state’s judiciary has

been obliged to develop new trial management techniques to

address large volumes of asbestos cases “threaten[ing] . . .[to]

' While petitioner makes much of the fact that West Virginia ranked

second among the fifty states in asbestos suit filings between 1988 and

1997, see Pet. 2, it neglects to mention that West Virginia has the third-

highest asbestosis crude mortality rate among the states. See Centers for

Disease Control and Prevention ef al., Work-Related Lung Disease

Surveillance Report 1999, tigure 1-5.

* Parkersburg is substantially the largest city in either state in that part

of the Ohio River Valley.

3

paralyz[e]” the lower courts’ active dockets. Wes? Virginia ex

rel. Appalachian Power Co. v. MacQueen, 479 S.E.2d 200,

303-04 (W. Va. 1996). West Virginia Trial Court Rule

26.01—under which these cases have proceeded—directly

reflects the “specialized approach” to asbestos personal injury

litigation that the West Virginia courts have developed “over

the past twenty years,” and that they have successfully

applied to resolve “tens of thousands of asbestos-related

claims.” Appendix to Union Carbide Petition for Writ of

Certiorari (May 9, 2003), at 30a (“Pet. App.”).

The heart of West Virginia’s approach has been to sever,

for initial trial, “the liability issues which are common” to

large groups of pending cases. Pet. App. 30a. Subsequent

proceedings, involving small groups of plaintiffs, address all

other issues, including those relating to exposure, causation,

and compensatory damages. /d. at 33a. This “common-

issues trial” approach to asbestos litigation was expressly

approved by the West Virginia Supreme Court in the 1996

Appalachian Power case. The court found that while

“common issues” tria's represent a “novel method of fact

resolution,” they have “much . . . to recommend [them] to all

parties because [they] represent[] an effective and efficient

manner to bring closure to these . . . [extremely numerous]

cases without depleting valuable resources in the event that

they are needed to satisfy a monetary award.” Appalachian

Power, 479 S.E.2d at 305.

The efficiency of the “common issues” approach derives

from eliminating the repetition of key witnesses and evi-

dence. As one of the judges who presided over Appalachian

Power 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 if it’s inhaled. And then you've got this big

body of state of the art evidence, . . . the information about

4

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.

To implement the “common issues” approach, 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 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 Jast [of these] common-issue trials held in 1998.” /d. at

371. Those six trials “resulted in the resolution, in whole or

in part, of what is estimated to be over 20,000 asbestos-

related cases.” Id. at n.6.°

3. The Operation of TCR 26.01. Following the resolution

of the Kanawha and Monongalia County cases, the West

* 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 asbestos actions—initially

involving over 100 different defendants—for initial trial of common

issues. See ACandS yv. Godwin, 667 A.2d 116, 120 (Md. 1995). The

Maryland Court of Appeals rejected defendants’ claim that this approach

denied them due process, even though “the 8,555 plaintiffs in the

consolidation ha[d] different occupations, were exposed at different times,

at different workplaces, have different diseases, and different medical

histories.” /d. at 146. The Court of Appeals found that “none of these

factors diminishes the commonality ef the Phase I issues.” /d. 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.

5

Virginia 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. See id. at 371 and n.7.

Rule 26.01 establishes a “Mass Litigation Panel” (“Panel’’)

consisting of six circuit judges appointed by West Virginia’s

Chief Justice to three-year terms. Pet. App. 24a (TCR

26.01(a)). Under the rule, 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.” Pet. App. 27a. That motion must be “served on

all the parties, all judges in actions which are the subject of

the motion, and the Administrative Director.” /d. Following

service, “[a]ny party shall have twenty (20) days . . . to file a

reply memorandum stating its position and opposition, if

any.” /d. “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.

4. The Present Proceedings. \n November 2000, two

West Virginia circuit judges referred asbestos cases involving

approximately 8,000 plaintiffs and 250 defendants to the

Panel pursuant to 26.01(e). The Chief Justice referred the

motion to a trial judge “for the purpose of conducting a

hearing and submission of findings of fact and a recom-

mendation to the Chief Justice regarding the motion to refer.”

11/17/00 Administrative Order at 1.

6

In October 2000, the trial judge held a status conference to

determine goals for the Rule 26.01 hearing. He determined

that an inquiry into common issues of law and fact would be a

_ key issue. At the Rule 26.01 hearing in November 2000, the

judge heard lengthy argument and testimony on that subject.

For example, counsel for several defendants argued that the

cases should not be referred because they lacked sufficient

“commonality,” while a representative for most of the many

remaining defendants indicated that “there are some common

issues and that there is a basis, under Rule 26” for con-

solidation. 11/08/00 Tr. 46. Following the hearing, the Chief

Justice issued an administrative order accepting the recom-

mendation that the referral motion be granted. 11/17/00

Administrative Order.

The trial judge initially assigned to develop a case man-

agement plan for these cases called for a series of traditional

trials on “all issues” between small groups of plaintiffs and

defendants. This strategy obviously departed from the ‘“‘com-

mon issues’ approach approved by the West Virginia

Supreme Court in Appalachian Power, and both the plaintiffs

and defendants petitioned the state’s high court to block

implementation of the plan. The West Virginia Supreme

Court ruled that this original plan did not “fully meet” the

need for a “fair[] and expeditious[]” approach to resolving the

pending asbestos cases. Allman, 551 S.E.2d at 375-78.

After that decision, the West Virginia Chief Justice

designated a new supervising judge who, in September 2001,

adopted a “Report’—which petitioner refers to as the

“Trial Scheduling Order” (“TSO”)—setting forth a new case

management plan for these cases. See Pet. App. 3la. In

particular, the TSO canceled the “all issues” trials that were

previously scheduled and indicated that all cases not success-

fully mediated by March 4, 2002, would be categorized into

three groups—1) products liability claims, 2) premises

claims, and 3) “deliberate intent” claims by employees under

7

West Virginia’s workers compensation statute. The TSO

scheduled for initial trial “liability issues which are common

to all pending cases.” Pet. App. 30a.

In December 2001, Mobil Corporation—which was then

one of about 250 defendants in the case—filed a motion in

the West Virginia Supreme Court seeking a writ of man-

damus or prohibition to prevent implementation of this

second trial plan. Mobil argued that the trial court had failed

to conduct a proper inquiry into whether “mass litigation”

could provide a fair determination of the claims presented.

The West Virginia Supreme Court denied relief, and Mobil

petitioned this Court for a writ of certiorari, arguing that the

West Virginia courts had violated due process by purport-

edly aggregating thousands of claims against hundreds of

defendants without any inquiry into the commonality of those

claims. Union Carbide filed a brief supporting Mobil’s effort

to obtain certiorari. Plaintiffs opposing the petition pointed

out (inter alia) that the West Virginia courts in fact had

conducted a proper inquiry into commonality. This Court

denied the petition. See Mobil Corp. v. Adkins, 537 U.S.

944 (2002).

On August 12, 2002, the trial court held a hearing to

address certain remaining trial management issues. First, the

court heard argument as to whether the juries determining

common issues of fault in Phase I should also consider

whether punitive damages “multipliers” should be applied to

particular defendants based on the evidence presented

regarding what they knew about the dangers of asbestos,

when they knew it, and what actions they took as a result.’

* A punitive damages “multiplier” allows total damages to be set by

establishing punitive damages as a “multiple” of compensatory damages.

Petitioner does not challenge the propriety of punitive damages multi-

pliers generally.

8

Plaintiffs argued that it would make sense for the Phase |

juries to consider this question:

When you have the defendant there whose conduct is at

issue and you have the evidence [of fault] that will shed

a light on that conduct, then that same jury should not be

told to stop at the end and not answer [the punitive

damages] question when it has all of the information

before it to answer that question.

8/12/02 Tr. 57.

The trial court agreed, holding that the Phase I juries would

assign a punitive multiplier on the basis of the evidence they

would hear as to defendants’ “reprehensibility.” 8/12/02 Tr.

95-97. In addition, as petitioner points out, the trial court also

ruled that West Virginia law would be applied at the “first

phase’”—the common issues phase—of trial. 8/12/02 Tr. 172.

-Finally, the court ruled that employees’ “deliberate intent”

claims under W. Va. Code § 23-4-2 would be rescheduled to

December 2002, rather than being heard at the same time as

the products liability and premises cases. 8/12/02 Tr. 26.

Foilowing the August hearing, as the trial date approached,

most of the parties reached settlements. Indeed, as petitioner

acknowledges, by the time of the September 23 hearing on

motions in limine, every one of the “premises liability”

defendants except for Union Carbide had settled, and only a

small handful (including Union Carbide) of “products

liability” defendants remained. Accordingly, the trial court

determined that it would be sensible to combine. the premises

trial against Union Carbide with the products liability trial

against Union Carbide and a few other defendants, rather than

have two juries listen to the same evidence twice regarding

what Union Carbide knew and when Union Carbide knew it.

The court pointed out that the problem of “commonality of

witnesses . . . if we had separate trials” had always been a

concern, and that the “efficient, economical way” to try these

9

cases now that nearly all the defendants had settled was in a

single proceeding. Pet. App. 61a.

The Phase I trial of common issues commenced on

September 26, 2002, and initially involved claims against

Union Carbide, Mobil Corporation, and Amchem Products,

Inc. Both Mobil and Amchem left the case following the

court’s ruling on motions for judgment as a matter of law—

Amchem because it prevailed on its motion, and Mobil

because it settled. Pet. 13 and n.16. Accordingly, when it

came time for defendants to present their case to the jury,

Union Carbide was the only defendant left in the case.

See, e.g., Charles Shumaker, “Mobil Settles; Carbide Now

Lone Asbestos Defendant,” Charleston Gazette, October 10,

2002, at IC.

Petitioner took over a week to put on its defense at trial,

presenting lengthy (and conflicting) argument and testimony

that Union Carbide’s particular brand of asbestos (“Calidria’’)

does not cause asbestos-related disease, and that, in any

event, the company had discharged its duty to warn about the

hazards of its asbestos products. See Pet. 13. On the

premises claims, Union Carbide presented detailed evidence

of its industrial hygiene policies and argued that the con-

tractor at each premise (not the corporation Union Carbide)

was contractually responsible for the protection of employees.

On October 24, 2002, after a day and a half of delib-

erations, the jury returned its verdict on the Phase I “common

issues” in the form of answers to detailed “special inter-

rogatories.” On the product liability claims, the jury found

that “Calidria” was a defective product, but that Union

Carbide had not acted “intentionally, oppressively, willfully,

maliciously, or in wanton or reckless conduct or criminal

indifference” in selling it, and therefore there was no need for

a punitive damages “multiplier” in those cases. Pet. App.

92a-93a. On the premises claims, the jury found that Union

Carbide had maintained “unreasonably dangerous” sites from

10

1945-1980 and, in so doing, had acted “intentionally,

oppressively, willfully, maliciously, or in wanton or reckless

conduct or criminal indifference.” Pet. App. 9la, 94a.

Accordingly, the jury assigned a punitive damages multiplier

of three to be applied in premises cases in which plaintiffs

succeed in showing causation and compensatory damages.

On November 4, 2002, former Union Carbide employ-

ees pursuing “deliberate intent” claims under W. Va. Code

§ 23-4-2 moved the trial court to apply offensive issue

preclusion—which the West Virginia courts call “offensive

collateral estoppel’—based on the Phase I jury’s answers to

the special interrogatories.” The court found that under West

Virginia law, five elements must be satisfied for plaintiffs to

prevail on a claim of offensive collateral estoppel:

1. The issues that will arise in the second case must

have been “actually litigated” in the first case;

2. The first judgment must have been a final judgment

rendered on the merits by a court of competent

jurisdiction;

3. There cannot have been any change in the controlling

facts or legal principles since the earlier case;

4. There can be no special circumstances indicating that

applying the earlier judgment would be unfair; and

5. Estoppel is not available if the plaintiffs asserting it

could have easily joined the first case, but failed to

do so.

Pet. App. 16a-17a (citing West Virginia cases).

The court further found that plaintiffs had two different

kinds of claims under § 23-4-2, and that the “actually liti-

> Plaintiffs’ motion was captioned “Motion for Collateral Estoppel to

Prevent the Relitigation by Union Carbide of the Liability Elements of

Deliberate Intent that were Determined in the Premises Liability Trial.”

Pet. App. 12a.

——————————— eee

1]

gated” requirement applied differently to the different claims.

Specifically, under § 23-4-2(c)(2)(i), a plaintiff must show

that the employer “acted with a consciously, subjectively, and

deliberately formed intention to produce the specific result

[of] injury or death to an employee.” Pet. App. 17a-18a.

Under § 23-4-2(c)(2)(ii), a plaintiff must show that the

employer a) maintained a workplace in which a specific

unsafe working condition presented a high risk of ‘serious

injury or death; b) had a subjective realization and apprecia-

tion of the risk presented; and c) that the condition violated a

safety statute, regulation, or accepted industry practice. Pet.

App. 18a-19a.

The court concluded that offensive collateral estoppel

could not be applied to claims under § 23-4-2(c)(2)(i) because

the jury had found only that Union Carbide had acted

“intentionally, oppressively, willfully, maliciously, or in

wanton or reckless conduct or criminal indifference”:

Because the interrogatory was asked in the disjunctive

form, using the term “or,” this Court cannot determine

which of these terms the jury actually believed

accurately described [Union Carbide’s] actions. There is

a possibility that the jury found [Union Carbide] acted

[only] recklessly or willfully or wantonly, which .. .

is insufficient to demonstrate deliberate intent under

[§ 23-4-2(c)(2)(i)].

Pet. App. 20a. In contrast, the court found that the jury’s

finding was sufficient to demonstrate employer “realization

and appreciation” of “unsafe working condition[s]” under

§ 23-4-2(c)(2)(11), and that the presence of asbestos fibers in

the air was an “unsafe working condition” that violated

industrial hygiene standards. See Pet. App. 18a, 20a-21la.

Finally, the court concluded that the remaining four elements

of West Virginia’s test for offensive collateral estoppel were

clearly satisfied as to type (ii) claims. /d. at 21a-22a.

In February 2003, the trial court denied post-trial motions

filed by Union Carbide. At that point, rather than proceed to

12

the Phase II “mini-trials” of causation and compensatory

damages for small groups of plaintiffs with similar claims and

exposure criteria, Union Carbide filed a “Writ of Prohibition,

Or In the Alternative, Petition for Appeal” with the West

Virginia Supreme Court. On June 17, 2003, the State

Supreme Court issued a brief order simply stating that the

“petition for writ of prohibition prayed for by the petitioner is

hereby refused.” Pet. App. 2a. This petition followed.

REASONS FOR DENYING THE PETITION

I. THE INTERLOCUTORY DECISION OF THE

STATE SUPREME COURT IS NOT A REVIEW-

ABLE “FINAL JUDGMENT.”

Petitioner asks this Court to review the judgment below

even though only one phase of the trial plan has been

completed, and Union Carbide has not been held liable for

any damages whatsoever. This Court has emphasized,

however, that the statutory provision governing review of

state court decisions, 28 U.S.C. § 1257(a), “establishes a firm

final judgment rule.” Jefferson v. City of Tarrant, 522 U.S.

75, 81 (1997). A state court judgment is not reviewable

unless it is “final as an effective determination of the

litigation and not of merely interlocutory or intermediate

steps therein.” /d. Plainly, the jury’s entry of a verdict on the

common issues tried in “Phase |” of these proceedings is not

“final as an effective determination” of this litigation. Issues

relating to whether Union Carbide’s behavior caused harm to

any particular plaintiff and what compensatory damages

should be assessed will not be addressed until the Phase II

mini-trials.

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

13

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). These ends are clearly implicated

here. Perhaps most importantly, there is an ongoing state

process in place for achieving a “final” determination of

plaintiffs’ claims—a process consistent with the way that

West Virginia has resolved tens of thousands of asbestos

cases in the past. At this point, the West Virginia Supreme

Court has merely declined to exercise its discretion to review

an interim step in that process, presumably because such

interlocutory review would be premature. 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. In

addition, the unfinished procedural posture of this case

creates a likelihood of piecemeal appeals.

Petitioner argues that a state supreme court denial of a writ

of prohibition “is a distinct lawsuit that is finally determined

even if further proceedings are to be had in the lower court.”

Pet. App. 6. The cases cited by petitioner in support, how-

ever, are very different from this case. All of them 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, Bandini Co. v. Superior Court, 284 U.S. 8, 13-14

(1931), “merely dealt with . . . jurisdiction”; the “only

question before [this Court was] . . . whether the District

Court of Appeal erred in deciding the federal questions as to

the validity of the statute upon which that jurisdiction was

based.” Finally, 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

ee

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

“fa] 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, Bandini, and Fisher, arises from a

request for an extraordinary writ. But the similarity ends

there—unlike in those cases, the jurisdiction of the lower

_ court is not at issue here 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 asbestos trials should be structured. 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

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

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

Petitioner also argues that “a refusal immediately to review

the state court decision might seriously erode federal policy.”

Pet. App. 8 (citing Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 482-83 (1975)). Petitioner does not, however, identify

any specific “federal policy” that might be “seriously eroded”

by failure to review the interim decision at issue, or cite a

single case remotely analogous to this in which the court has

granted certiorari at an interim stage. Instead, petitioner

makes the surprising claim that “federalism” requires this

Court to find a constitutional violation where the West

Virginia Supreme Court has declined to provide extraordinary

relief. To the contrary, “federalism” obviously counsels that

15

this Court should be reluctant to interfere in ongoing state-

court proceedings.

Petitioner also makes the curious claim that this Court

should grant review now because the case may otherwise be

“mooted on state law grounds,” or Union Carbide may

succumb to “pressure to settle,” and the opportunity to review

“important federal issues” may be “lost.” Pet. 8. This

argument stands the Court’s criteria for granting certiorari on

their heads—petitioner suggests that the Court should grant

review because the case may otherwise be resolved without

the need for the Court’s intervention. That is, of course, a

reason not to grant review. Moreover, as to “pressure to

settle,” Union Carbide is clearly represented by expert coun-

sel who will have the opportunity to defend their client on

issues of causation and damages in further proceedings. If

Union Carbide is confident that it can show that its products

and premises did not cause injury to plaintiffs, then it should

proceed to Phase II trials on those issues; if not, it should

consider settling. Significantly, however, Union Carbide’s

position is no different from that of any defendant defending

multiple lawsuits raising the prospect of potentially

substantial liability.

Il. THE FIRST QUESTION PRESENTED DOES

NOT MERIT REVIEW.

The petition makes little effort to justify review of the West

Virginia courts’ establishment of a punitive damages “multi-

plier” of three times compensatory damages under this

Court’s usual standards for issuance of the writ. Petitioner

does not claim, for example, that the lower court judgment

evidences confusion among the state supreme courts or the

federal courts of appeal. It does not. Nor does petitioner

claim that the result below is inconsistent with this Court’s

guidance regarding acceptable ratios between punitive and

compensatory damages. It is not. Instead, petitioner is

16

reduced to arguing that the writ should issue because the

lower courts’ trial plan—which assigned responsibility for

measuring defendant’s reprehensibility (through assignment

of a punitive damages multiplier) to the “Phase I’ jury hear-

ing evidence regarding defendant’s knowledge of the dangers

of asbestos and consequent actions—allegedly violated an ill-

defined “right to due process” purportedly discernible from

this Court’s cases. There was no such violation.

In attempting to raise the specter of conflict with this

Court’s cases, petitioner predictably relies on State Farm

Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003). At

the outset, however, the striking dissimilarities between that

case and this bear emphasis. In State Farm, the Utah

Supreme Court approved compensatory damages of $1

million and punitive damages of $145 million against State

Farm for alleged bad faith, fraud, and intentional infliction

of emotional distress in its representation of its insureds,

“the Campbells, in a wrongful death action. This Court

acknowledged that “State Farm’s handling of the claims

against the Campbells merits no praise,” id. at 1521: State

Farm had improperly altered company records to make

Campbell appear less culpable; had exercised poor judgment

in taking the case to trial; and had amplified the eventual

judgment’s effect on the Campbells by first advising them

that their assets would be safe, and then telling them,

postjudgment, to put a for-sale sign on their house. /d.

Nonetheless, this Court found that “few awards exceeding a

single-digit ratio between punitive and compensatory

damages, to a significant degree, will satisfy due process.”

Id. at 1524. A punitive damages to compensatory damages

ratio of 145 to 1 as punishment for inflicting a year and a half

of emotional distress on the Campbells was understandably

deemed excessive. /d.

This case could hardly be more different. Here, after

hearing voluminous testimony from both sides regarding

17

Union Carbide’s industrial hygiene practices at the sites in

question, the jury found that Union Carbide had maintained

“unreasonably dangerous” premises for over three decades,

from 1945-1980. Pet. App. 13a. In so doing, the jury found,

Union Carbide had acted “intentionally, oppressively, will-

fully, maliciously, or in wanton or reckless conduct or crim-

inal indifference.” Pet. App. 13a-l4a. Based on these

findings, the jury concluded that a punitive damages multi-

plier of three should be applied to compensatory damages in

cases where plaintiffs ultimately succeed (in future “mini-

trials”) in showing causation and compensatory damages.°

That determination is entirely consistent with State Farm’s

admonition that “few awards exceeding a single-digit ratio”

between punitive and compensaiory damages will be appro-

priate. 123 S. Ct. at 15244emphasis added). Indeed, there is

a long “history, dating back over 700 years . . . of double,

treble, or quadruple damages to deter and punish.” State

Farm, 123 S. Ct. at 1524. The punitive damages multiplier

adopted below falls squarely within that tradition.

Because Union Carbide cannot challenge the substantive

result below (the 3-1 ratio), it resorts to challenging the

process by which the result was achieved. Specifically,

petitioner claims that the jury’s determination of “punitive

damages without hearing any evidence of harm to any

specific plaintiff’ (Pet. 15) violates this Court’s requirement

that a “defendant should be punished for the conduct that

harmed the plaintiff, not for being an unsavory individual or

business.” Pet. 16 (citing State Farm, 123 S. Ct. at 1523).

Once again, however, State Farm is obviously distinguishable

from this case. There, this Court found that the 145-to-1

punitive to compensatory damages ratio approved by the Utah

courts was expressly intended to “rebuke State Farm for its

nationwide activities.” 123 S. Ct. at 1522. The Court found

* The jury rejected the plaintiffs’ claims for punitive damages in con-

nection with their products liability claims.

lu

that many of those activities “bore no relation to the

Campbells’ harm,” and that “[a] defendant’s dissimilar acts,

independent from the acts upon which liability was premised,

may not serve as the basis for punitive damages.” /d. at 1523.

The punitive damages multiplier of three—adopted by the

jury below for use in premises cases—was not based on

“nationwide activities” or on “independent ... acts” from

those “upon which liability was premised.” To the contrary,

this petition relates to punitive damages based only on Union

Carbide’s reprehensible behavior at five plants located in

- West Virginia (at South Charleston, Institute, Alloy, Tech-

nical Center, and Sistersville) and one plant in Marietta, Ohio

(directly across the Ohio River from Parkersburg, West

Virginia). A// of the premises plaintiffs in these consolidated

cases allege injury at these specific premises. The jury found

that Union Carbide had acted “intentionally, oppressively,

willfully, maliciously, or in wanton or reckless conduct or

criminal indifference” by maintaining “unreasonably dan-

gerous” premises at these sites. Pet. App. 13a-14a. Accord-

ingly, the behavior upon which the jury’s punitive damages

multiplier was based is in no way “independent from the acts

upon which liability was premised.” State Farm, 123 S. Ct.

at 1523. To the contrary, that behavior is the basis of every

claim of every premises plaintiff in this case.

Equally importantly, no punitive damages have actually

been awarded at this point. The question whether Union

Carbide’s maintenance of “unreasonably dangerous” prem-

ises actually caused damages to individual plaintiffs, as well

as the proper compensation for such damages, will be

litigated in Phase II small-group trials that have not yet taken

place. Only where Union Carbide’s reprehensible behavior is

ultimately found to have caused damages to particular indi-

viduals, and compensatory damages are awarded, will the

punitive damages multiplier adopted by the “common issues”

jury be applied. Actual punitive damages—if any—will thus

19

be three times the specific compensatory damages awarded

for specific harm that petitioner caused a specific plaintiff. Mt

is undeniable that such punitive damages wili directly

calibrate Union Carbide’s punishment to the harm that it

caused individual plaintiffs. Accordingly, petitioner’s sug-

gestion that punitive damages here, as in State Farm, “bfear]

no retation to the [plaintiffs’] harm,” is simply incorrect, and

its arguments for review of the first question presented should

be rejected.

il. THE SECOND QUESTION PRESENTED DOES

NOT MERIT REVIEW.

Union Carbide’s second question presented is only a minor

variation on its first: petitioner argues that applying the

punitive damages multiplier determined below “to premises

cases from Marietta, Ohio” would violate “this Court’s

holding in BMW of N. America, Inc. v. Gore, 517 U.S. 559,

571, 73 (1996), and [State Farm v.] Campbell, that principles

of state sovereignty and comity prohibit a State from using

economic sanctions to change. conduct in other States.”

Pet. 18. Once again, however, this case is worlds removed

from State Farm.

As described above, State Farm was a suit by individuals

insured by State Farm against the company seeking damages

for bad faith, fraud, and intentional infliction of emotional

distress. This Court found that the “case . . . was used as a

” BMW v. Gore is even farther afield. There, this Court pointed out that

the behavior punished by the lower court judgment was entirely legal in

many states. See 517 U.S. at 569 & n.13. It held that “a State may not

impose economic sanctions on violators of its laws with the intent of

changing the tortfeasors’ lawful conduct in other States.” Jd. at 572.

Here, in contrast, petitioner does not suggest that while maintaining “un-

reasonably dangerous” premises “intentionally, oppressively, willfully,

maliciously, or in wanton or reckless conduct or criminal indifference” is

illegal in West Virginia, it would be “lawful conduct” in other states.

20

platform to expose, and punish, the perceived deficiencies of

State Farm’s operations throughout the country. The Utah

Supreme Court’s opinion maf[de] explicit that State Farm was

being condemned for its nationwide policies rather than for

the conduct directed] toward the Campbells.” 123 S. Ct. at

1521. The State Farm Court concluded that an award of

punitive damages on that basis is improper: “Any proper

adjudication of conduct that occurred outside Utah to other

persons would require their inclusion [in the case], and, to

those parties, the Utah courts, in the usual case, would need to

apply the laws of their relevant jurisdiction.” Id. at 1522.

Plaintiffs here, in contrast, do not seek to punish Union

Carbide for its “operations throughout the country.” Indeed,

even petitioner does not maintain that the punitive damages

multiplier adopted below reflected any effort to “condemn|

Union Carbide] for its nationwide policies.” Rather, as

previously noted, the punitive damages multiplier applies

only to premises claims in connection with the five West

Virginia plants at issue, and a neighboring Ohio plant.

Petitioner’s second question presented thus essentially

reduces to the suggestion that the West Virginia courts may

have improperly applied (or failed to apply) West Virginia

choice-of-law analysis to the relative handful of plaintiffs in

these cases claiming injury at the Marietta, Ohio site.”

Whether true or false, that is not a question meriting review

by this Court, but is, at most, one for the West Virginia

Supreme Court. And petitioner does not appear even to have

laid the groundwork for a proper objection to that Court

regarding the trial court’s choice-of-law ruling. As this Court

held in Phillips v. Shutts, 472 U.S. 797, 816 (1985), the first

step in demonstrating that some law other than forum law

* As further set forth infra at 26, the record does not reflect precisely

how many such plaintiffs there are because petitioner failed to present

evidence on that issue to the trial court.

iam iain

21

must be applied is a showing of a “material” conflict on

issues relevant to the case. Here, petitionér provides no

evidence whatsoever that it properly established any such

conflict between West Virginia law and that of another state

before the trial court prior to the choice-of-law ruling. Nor

does petitioner reference any post-ruling arguments to the

trial court framing the issue.

Finally, petitioner seizes on the language of the trial court’s

“Special Interrogatory 4” to argue that the punitive damages

award was based on “hypothetical claims,” rather than those

of plaintiffs actually before the trial court. Pet. 18 and n.21.

Special Interrogatory 4 asked the jury:

Do you find from a preponderance of the evidence that,

when non-employee workers were present on the sites

owned by Union Carbide, Union Carbide acted

intentionally, oppressively, willfully, maliciously, or in

- wanton or reckless conduct or criminal indifference to

civil obligations affecting the rights of others and should

therefore pay punitive damages?

Pet. App. 13a-14a. The jury answered “yes.” Id. Nothing

about this question and answer, however, suggests that the

jury’s finding was based on “hypothetical claims.” Rather,

the jury heard extensive evidence that Union Carbide main-

tained “unreasonably dangerous” premises, in blatant dis-

regard for the safety of the workers at those sites. Union

Carbide primarily defended on the ground that the workers

were “employees of contractors,” not of Union Carbide, and

that “the contractor was contractually responsible for the

protection of its employees.” Pet. 13-14. Accordingly, it is

disingenuous of Union Carbide now to suggest that Special

Interrogatory 4 was flawed because it acknowledged Union

Carbide’s own argument that many of the worksite plaintiffs

were not Union Carbide employees.

22

IV. THE THIRD QUESTION PRESENTED DOES

NOT MERIT REVIEW.

Petitioner’s third question presented is premised on the

notion that the trial below represented a “mass trial” that

denied Union Carbide a reasonable “opportunity to be heard.”

Pet. at 19. As set forth above, however, by the time the trial

reached defendant’s presentation of its case, Union Carbide

was the only defendant left in the trial. As a result, the idea

that Union Carbide was not given an “opportunity to be

heard” sufficient to comport with due process borders on the

absurd. In any event, Union Carbide does not even attempt to

demonstrate that this question satisfies the Court’s criteria for

issuance of the writ.

A. Union Carbide Had A Meaningful (And

Indeed, Lengthy) Opportunity To Be Heard.

Petitioner does not argue that the consolidation of plain-

tiffs’ suits against it directly conflicts with any specific

precedent of this (or any other) Court, but instead vaguely

maintains that the trial denied it the opportunity to be heard

“in a meaningful manner.” Pet. 19. More specifically, while

petitioner acknowledges that aggregating cases for trial “does

not per se violate the requirement of due process,” it claims

that “[iJn this case the aggregation did violate due process

because the lack of commonality and prejudice meant [Union

Carbide] could not exercise its right to be heard.” Pet. 20.

Given the fact that Union Carbide was the sole defendant

to present its arguments to the jury, it is frankly difficult

to understand exactly what petitioner is talking about. It

appears, however, that petitioner may wish to challenge the

West Virginia courts’ original determination that these cases

contained sufficient common factual and legal issues to

justify grouping them together for trial—but yet without

explaining how that determination was made, or that it was

23

previously challenged before the West Virginia courts and

this Court.

Consideration of commonality began in August 2000,

when the Chief Justice of the West Virginia Supreme Court

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” these asbestos cases. 12/21/00 Adminis-

trative Order at 1. At a brief October 2000 hearing, the trial

judge determined that “the major issue” for a subsequent

hearing would be whether the cases “generally come in”

under Rule 26.01, that is, “[dJjo they involve a common

question of fact, common issues [of law]?” 10/17/00 Hearing

Tr. at 23.

The transcript of the November 8, 2000 hearing on com-

monality runs to more than 100 pages. Counsel for several of

the 250 defendants then involved in the case—specifically,

USX and CSX Transportation and Norfolk Southern Railway

Company—argued at the hearing that the cases did not

exhibit the commonality of issues required by West Virginia

Rule 26. 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 [to

be tried] 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 Union

Carbide did not disagree. In findings of fact and conclusions

of law submitted to the Chief Justice on November 15, 2000,

the trial court agreed with “[t]he plaintiffs and defendants . . .

that the cases should be sent to the mass litigation panel.”

11/17/00 Order at 2. On November 17, 2000, West Vir-

ginia’s Chief Justice issued an order adopting the lower

court’s findings and conclusions.

In December 2001, after the trial court’s adoption of the

trial plan now being implemented, Mobil Corporation unsuc-

cessfully sought mandamus from the West Virginia Supreme

24

Court to stop the consolidated trial from going forward.

Mobil then petitioned this Court for a writ of certiorari,

arguing that the West Virginia courts had consolidated

thousands of cases against hundreds of defendants without

any inquiry into the commonality of those claims, and that the

consolidation violated due process. In opposing the petition,

plaintiffs pointed out (inter alia) that the West Virginia courts

in fact had conducted a proper inquiry into commonality, as

described above. This Court denied the petition. See Mobil

Corp. v. Adkins, 123 S. Ct. 346 (2002).

Union Carbide, which filed a brief in support of Mobil’s

petition with this Court, appears to wish to revisit this issue.

Clearly, however, whatever appeal Mobil’s arguments had in

2001, when the consolidation did, indeed, involve hundreds

of defendants—albeit after a proper inquiry into common-

ality—has now evaporated. Again, it cannot be overem-

phasized that Union Carbide was the only defendant to

present its defense to the jury on the Phase I common issues.

Petitioner had ample opportunity to argue its case. And argue

it did. On October 8, 2002, plaintiffs rested their case-in-

chief against Union Carbide, which promptly began present-

ing its defense. For over a week, petitioner presented and

presented, in arguments to the jury and live testimony totaling

close to two thousand pages of trial transcript.” In light of

this fact, Union Carbide’s claim that it was denied a rea-

sonable opportunity to be heard is simply preposterous.

” As noted above, Union Carbide argued on the products claims that its

particular brand of asbestos (“Calidria”) does not cause asbestos-related

disease, and that, in any event, the company had discharged its duty to

warn about the hazards of its asbestos products. See Pet. 13. On the

premises claims, Union Carbide argued that the contractor at each premise

(not Union Carbide) was contractually responsible for the protection of

employees. See /d. 13-14. These thousands of pages of arguments do not

address the specifics of whether any individual plaintiff was harmed,

because such issues of causation and damages are to be tried in Phase II

small-group trials.

25

It follows that petitioner’s half-hearted effort to analogize

this case to Amchem Products, Inc. v. Windsor, 521 U.S. 591

(1997), fails as well. As petitioner acknowledges, the class at

issue there was intended “to achieve a global settlement of

current and future asbestos-related claims nationwide” against

all potential defendants. Pet. 20. The proceedings here do

nothing of the sort. Rather, they will adjudicate the liability

of a single defendant, Union Carbide, to specific, identified

plaintiffs for current claims arising primarily from exposure

in West Virginia. Indeed, even petitioner stops short of

claiming a specific conflict between this case and Amchem,

because clearly there is none. Unlike all of the myriad

potential defendants in Amchem, petitioner had a full and fair

opportunity to defend itself on the issues tried in Phase I, and

will have a further opportunity to do so in Phase II trials on

causation and damages.

B. Petitioner Has Not Properly Presented Its

“Choice-Of-Law” Issue Either To The West

Virginia Courts Or To This Court.

The second half of petitioner’s argument in connection

with its third question presented is even more befuddling than

the first. Petitioner does not claim that the question whether

the West Virginia courts properly applied long-settled West

Virginia precedent governing conflicts of law in these cases is

an issue meriting review by this Court—and of course it is

not.'” Rather, petitioner makes the unusual argument that the

West Virginia courts’ purported “disregard of Shutts” some-

how calls the fundamental fairness of employing a consoli-

dated trial against Union Carbide into question, purportedly

making that an issue warranting this Court’s review.

' As noted above, see Part III, supra, that question is, at most, one for

the West Virginia Supreme Court. That Court has not, however, ever

addressed the issue, presumably because—as further discussed below—

petitioner has failed properly to present it.

26

First, Phillips v. Shutts, 472 U.S. 797 (1985), is obviously

inapposite here. In Shutts, 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.” /d. 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 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.” /d. at 816.

Here, although petitioner repeatedly suggests that West

Virginia is a “magnet state for the filing of asbestos cases,”

see, e.g., Pet. 19, it does not appear to have presented

evidence to the trial court proving that any significant number

of the plaintiffs (let alone 97%) “had no apparent connection”

to West Virginia. Although the record thus does not reveal

exactly what percentage of the plaintiffs reside in, claim

exposure in, or otherwise have an “apparent connection” to

West Virginia, there is no doubt that daimants with an

obvious connection to West Virginia represent the vast

majority of the plaintiffs in these consolidated cases.

More importantly, notwithstanding the requirement of

Shutts, petitioner also does not appear te have made any

effort to demonstrate to the trial court that there are specific,

“material” conflicts between West Virginia law and that of

another state that are relevant here. Indeed, even in its peti-

tion to this Court, petitioner’s entire discussion of “material”

conflicts is limited to footnotes, see Pet nn. 29 and 31.

27

Significantly, however, petitioner does not cite to any

pleading or transcript before the trial court where Union

Carbide (or anyone else) elaborated those (or any other)

claims of conflict as required by Shutts.

Of course, even had Union Carbide done so, that would not

make its third question presented any more worthy of review.

Again, petitioner does not seek review of the West Virginia

courts’ choice-of-law ruling. Instead, petitioner’s third ques-

tion presented suggests that petitioner should be permitted an

interlocutory challenge to West Virginia’s entire Rule 26.1

process for consolidating cases because the West Virginia

court purportedly failed to apply the state’s settled conflicts

law. That simply makes no sense. The proper way to

challenge the trial court’s choice-of-law ruling would, of

course, be to appeal that ruling to the West Virginia Supreme

Court at such time as any judgment against Union Carbide

becomes final under state law. Petitioner has not done so yet,

but the option remains open to it in the event (which, from the

petition, appears questionable) that petitioner properly

presented and preserved the issue before the trial court. In the

event that it did not, petitioner certainly should not be

allowed to revive its choice-of-law claim by merely cloaking

it in due process language.

V. THE FOURTH QUESTION PRESENTED DOES

NOT MERIT REVIEW.

Petitioner’s final question presented bears little discussion.

Petitioner does not seriously suggest that the lower court’s

routine application of West Virginia law on collateral

estoppel will create conflict among jurisdictions, or that it

conflicts with any specific precedent of this Court. Instead,

petitioner merely seeks correction of an alleged error by the

trial court—specifically, the court’s ruling that the jury

finding that Union Carbide acted “intentionally, oppressively,

willfully, maliciously, or in wanton or reckless conduct”

28

satisfies § 23-4-2(c)(2)(ii)’s requirement of employer “reali-

zation and appreciation” of the existence of unsafe working

conditions.

Petitioner argues that the trial court’s interpretation of

§ 23-4-2(c)(2)(ii) is inconsistent with the West Virginia

Supreme Court’s ruling in Mayles v. Shoney's, Inc., 405

S.E.2d 15, 19 (W. Va. 1990). See Pet. 28. If so, petitioner's

proper recourse is, once again, obviously to the West Virginia

Supreme Court. As with petitioner’s choice-of-iaw claim,

mere invocation of a vague “right to due process” cannot

transform a purported misapplication of settled state law into

a federal constitutional claim meriting this Court’s review.

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

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 SKAGGS

LAW OFFICES OF STUART

CALDWELL

405 Capitol Street, Suite 607

Charleston, WV 25301

(304) 343-4323

29

RONALD MOTLEY

ANNE MCGINNESS KEARSE

MOTLEY RICE, LLC

28 Bridgeside Boulevard

Mount Pleasant, SC 29465

(843) 216-9000