Catching Up with the Fall 2009 Term

Where does the time go? I posted in July, went to London and forgot to update this blog. This week, I learn that one of the all time great bloggers, Mark Herrmann is leaving the Drug & Device Blog because he is going in house. I decided to get back at it. So, here are the hits from the Fall 2009 Term of the Supreme Court of Appeals of West Virginia.

The Court held a one year statute of limitations applied to statutory and common law bad faith actions in Noland v. Virginia Reciprocal.

The Court upheld an arbitration provision in an employment contract, finding the FAA did not preempt judicial review to determine whether an agreement is valid and enforceable under state law. While finding boilerplate contract to be one of adhesion, it was not unconscionable and therefore enforceable. State ex rel Crites v Clawges.

Under Leslie Equipment v. Wood Resources, service by certified mail under Rule 4 does not itself establish personal jurisdiction over an out of state defendant. Warner v Wingfield is a rare opinion affirming Rule 11 sanctions against a party for a filing and pursuing a case, without performing any investigation.

The third time being the charm, the Court, on remand from SCOTUS, again reversed a $50M verdict in Caperton v. Massey: "Based upon our thorough consideration of the parties’ arguments, the relevant case law, and the record on appeal, this Court concludes, based upon the existence of a forum-selection clause contained in a contract that directly related to the conflict giving rise to the instant lawsuit, that the circuit court erred in denying a motion to dismiss filed [defendants]."

Another rare one was Jones v. Setser which reversed a defense verdict because of argument by counsel, using a cartoon, that plaintiff and his expert would make a malpractice claim regardless of the defendant physician's actions.

No preemption of state law claims over formaldehyde exposure in modular homes under Manufactured Home Construction and Safety Standards Act, 42 U.S.C. §§ 5401– 5426, or promulgated regulations. Harrison v. Skyline Corp.

The Court overruled longstanding statute of limitations precedent in Dunn v. Rockwell, establishing a new five step test for the application of the discovery rule and eliminating the element of defendant fault: 1. identify applicable SOL; 2. identify when the requisite elements of the cause of action occurred; 3. determine when the statute of limitation began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action; 4. if plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action; 5. the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine. "Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact."

More to come.....

End of Term - Statute of Limitations

Stuyvesant v. Preston Cty Comm'n affirms the dismissal of a complaint as barred by the statute of limitations. Plaintiff's decedent hung himself in the county jail. Suit was filed over two years later, but the complaint asserted it was within two years of the family first learned that the decedent had medical treatment before his suicide. The Supreme Court found there was no allegation that a wrongful act related to the medical care caused the death:

More specifically, as per the fourth part of the Bradshaw test, the appellant failed to make even the barest of allegations in his complaint, or in any of his subsequent filings below, "that [a] wrongful act, neglect or default of that person or entity [had] a causal relation to the decedent's death." In that regard, the appellant's complaint did not allege, even upon information and belief, that the Sheriff fraudulently concealed or misrepresented material facts surrounding the death of [the decedent]. In that regard, the appellant states that the discovery of the invoice during the month after [the decedent's] death, in and of itself, caused the appellant to "doubt the Sheriff's assertion that [the decedent] committed suicide." Such a broad and disconnected allegation is woefully insufficient to allow for the statute of limitations to be tolled in this case. Had the appellant alleged any causal connection or nexus between his perception of the evasive reaction by the Sheriff in response to questions about the invoice and Mr. Daft's subsequent death by hanging, the result of this case may have been different. However, that is not the situation before this Court. Thus, the circuit court did not commit error in finding that there was no factual basis to permit application of the discovery rule.

This opinion is interesting for the Court's close focus (perhaps a la Twombly/Iqubal?) on what the pleadings state. I have argued several statute of limitations cases in our Court, and have advanced the argument that in "discovery rule" situations, plaintiffs should have to plead the facts required to excuse the late filing. This opinion comes the closest.

End of Term - Jury Selection

State v. Newcomb, a criminal case, discusses jury selection, clarifying that a clear statements of bias by a juror require disqualification; however, responses to general questions are not enough and require further inquiry.

When a prospective juror makes a clear statement of bias during voir dire, the prospective juror is automatically disqualified and must be removed from the jury panel for cause. However, when a juror makes an inconclusive or vague statement that only indicates the possibility of bias or prejudice, the prospective juror must be questioned further by the trial court and/or counsel to determine if actual bias or prejudice exists. Likewise, an initial response by a prospective juror to a broad or general question during voir dire will not, in and of itself, be sufficient to determine whether a bias or prejudice exists. In such a situation, further inquiry by the trial court is required. Nonetheless, the trial court should exercise caution that such further voir dire questions to a prospective juror should be couched in neutral language intended to elicit the prospective juror's true feelings, beliefs, and thoughts and not in language that suggests a specific response, or otherwise seeks to rehabilitate the juror. Thereafter, the totality of the circumstances must be considered, and where there is a probability of bias the prospective juror must be removed from the panel by the trial court for cause.

More End of Term

In Murphy v. Eastern Ass. Coal, the Court overrules a three year old case, Savilla v. Speedway SuperAmerica, LLC, 219 W. Va. 758, 639 S.E.2d 850 (2006). "Although this Court is loathe to overturn a decision so recently rendered, it is preferable to do so where a prior decision was not a correct statement of law."

Savilla had limited the persons who can sue employers for "deliberate intention" under West Virginia Code § 23-4-2(c) (2005), to widows and widowers, children, and dependents as set forth in the statute. Murphy rereads the statute's reference to the "employee" to mean the "estate" of the employee can bring a claim for wrongful death, thereby increasing the beneficiaries to those listed in the wrongful death statute. Justice Workman, who wrote the decision, was plaintiff's counsel in Savilla. Essentially, the Savilla dissent penned by Justice Davis' is now the majority opinion with the new court. Savilla was law for less than three years, I believe.

End of Term Report - Insurance Coverage Case

Catching up after a busy June with a couple of posts on opinions issued by the WV Supremes.

Boggs v. Camden Clark, an opinion by Justice Benjamin, answers certified questions from the United States District Court regarding insurance coverage for a verdict in a medical negligence case of $6.5 million, including $3 million in punitive damages. The defendant hospital had an insurance policy with St. Paul which provided $1M coverage for medical negligence claims, with a $2M self insured retention (SIR), and excess coverage of $15M. St. Paul had issued a reservation of rights, and contested payment of the verdict because the findings of the jury included intentional conduct not covered under the policy , as well as conduct excluded under these provisions. The hospital filed a declaratory judgment action, and the US District Court certified two questions to the Supreme Court of Appeals of West Virginia. The Court's answers are in bold, and are the two new syllabus points in the decision.

1. Under West Virginia law, when an insured is found liable for a tort, and the complaint indicates that the tort could be based on conduct that the insurance policy covers, on conduct that the insurance policy does not cover, or both, and when the jury verdict does not specify which conduct gave rise to the insured's liability, does the insured bear the burden of proving that the liability was based on covered conduct, or does the insurer bear the burden of proving that the liability was based upon non-covered conduct?

Answer: Where a policy of insurance does not impose a duty to defend upon the insurer and the insured has controlled the defense of the underlying claims, if a court determination regarding allocation of a jury verdict between the claims covered by the terms of the policy and the claims not covered by the terms of the policy is sought, the insured has the burden of proof to establish proper allocation.

2. Under West Virginia law, when a jury awards punitive damages against an insured, and the punitive damages could be based on a claim covered by the insurance policy, on a claim not covered by an insurance policy, or both, does the insured bear the burden of proving that the punitive damages were based upon a covered claim, or does the insurer bear the burden of proving that the punitive damages were based on a non-covered claim?

Answer: In order to obtain indemnification under a policy of insurance which does not exclude punitive damages and under which there is no duty to defend, an insured who has controlled the defense in a case resulting in a punitive damage award and who seeks a court determination regarding allocation of the award has the burden of proving that the claim or claims on which the punitive damage award is based is covered by the terms of the policy.

The court's also discusses the need to submit special interrogatories to the jury in the underlying tort litigation to clarify which claims are covered and which are not.

As an initial matter, we note that an insurer who undertakes the defense of a suit against its insured must meet a high standard of conduct. Duke v. Hoch, 468 F.2d 973, 978 (5th Cir.1972); Gay & Taylor, Inc. v. St. Paul Fire & Marine Ins. Co., 550 F.Supp. 710, 714-16 (W.D.Okla.1981). The right to control the litigation carries with it certain duties. Traders & Gen. Ins. Co. v. Rudco Oil & Gas Co., 129 F.2d 621, 627 (10th Cir.1942). One of these is the duty not to prejudice the insured's rights by failing to request special interrogatories or a special verdict in order to clarify coverage of damages. See Gay & Taylor, 550 F.Supp. at 716. The reason for this is that when grounds of liability are asserted, some of which are covered by insurance and some of which are not, a conflict of interest arises between the insurer and the insured. If the burden of apportioning damages between covered and non-covered were to rest on the insured, who is not in control of the defense, the insurer could obtain for itself an escape from responsibility merely by failing to request a special verdict or special interrogatories. Duke, 468 F.2d at 979. The insurer is in the best position to see to it that the damages are allocated; therefore, it should be given the incentive to do so.

The opinion makes clear that its holding is limited to cases where the insured, with a large SIR, hires counsel and controls the defense. Where the carrier has the duty to defend, retains counsel and controls the defense, the answers may well be different. The case now goes back to the District Court for the ultimate determination of coverage.

Mountain Stage

For one of the many great things about West Virginia, I went to Mountain Stage in Princeton on Sunday night. As always, an excellent show. Julie Adams and Larry Groce of the Mountain Stage Band were in fine voice, and the Band was as tight as ever.

I went to see Steve Earle, especially to hear him sing stuff from the new Townes album. It was just Steve and an acoustic guitar to end out the show, and he didn't disappoint, with a talking folk beginning about Townes, followed by Pancho and Lefty, and adding a pretty rousing Copperhead Road. The rest of the show was a real pleasant surprise, with folks I had not heard before. Doyle Lawson & Quicksilver did some classic bluegrass and gospel with some soaring harmonies. I probably liked Sara Watkins the best as she showed some considerable range from her days with Nickel Creek. King Wilkie was sort of interesting with a mix of bluegrass and almost Beatle like songs. The Lovell Sisters were the most surprising with a tight set of fiddle, mandolin and dobro backed by bass and drums.

If you ever get the chance to see Mountain Stage, it is well worth the price of a ticket, which ranges from $12 to 18 bucks.

Recusal after Caperton v. Massey

The United States Supreme Court, in Caperton v. Massey, held that West Virginia Supremre Court Justice Benjamin should have recused himself from hearing the case because of financial support of his campaign of $3 million dollars by the president of the defendant company. Factually, the contributions were to an independent advocacy group which also collected money from others. Due to the "extreme" amount of contributions, the SCOTUS found there was an appearance of impropriety which rose to the level of a denial of due process.

The SCOTUS made it clear that there was no evidence of actual bias by Justice Benjamin. Thus, it is the "appearance of impropriety" or perception of unfairness that drove the ruling. The dissents, by Justice Roberts and Scalia, focused on the questions raised and unanswered by the ruling.

A couple of thoughts on this one. First, disclosure: Massey and its subsidiaries are clients of my law firm.

This opinion reverses one case based on what the Court calls "extreme" facts, particularly the amount of money contributed. Otherwise, it provides no guidance as to what amount of contribution, and by whom, rises to the level of requiring recusal. In this respect, the opinion is reminiscent of Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), where Justice Stewart, describing hard core pornography stated "I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it...." Future litigants, faced with the issue of contributions, will find little to answer the question of whether due process requires recusal from this opinion. As the dissents note, the opinion raises a host of questions it simply doesn't answer.

What this opinion means is unclear. The WV Court will now rehear the case sans Justice Benjamin. In the future, it appears that litigants will have to consider the issue of recusal in any case where there is a party or counsel who was a significant supporter of a justice in our partisan political elections. Do "bundled" donations - raised from many different people through the efforts of an organization (the dissents note the Trial Lawyers raised $2M in the same election) count toward the due process total? It seems to me that as long as there are partisan political elections, there will be supporters, donors and independent groups who get involved. For me, I agree with the ABA - merit selection with broad based commissions doing the selection in a transparent public way is better than the fistfights we and other states are seeing in our judicial elections. See, ABA Report, "An Independent Judiciary" (1997).
http://www.abanet.org/poladv/documents/indepenjud.pdf

Unfortunately, this is another black eye for the WV Justice system, ironically in a case where the Court finds no actual bias or prejudice on the part of Justice Benjamin.

Anyone interested in this decision should actually read it. Here is the link:

http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf

New Opinions from the WV Supreme Court

The Supreme Court issued new opinions today, including another separate opinion in the Andreini case, which (short story) overturned a new trial (granted as a "mistrial" by the circuit court) over inflammatory arguments by defense counsel.

First, in Stuyvesant v. Preston Cty Comm'n, the Court affirmed the dismissal of a complaint as barred by the statute of limitations. The plaintiff's decedent hung himself in the county jail. Suit was filed over two years after the death, but within two years of the family learning, according to the complaint, that the decedent had received medical care at the jail prior to his death. The court found there was no allegation that a wrongful act related to the medical care caused the death:

More specifically, as per the fourth part of the Bradshaw test, the appellant failed to make even the barest of allegations in his complaint, or in any of his subsequent filings below, “that [a] wrongful act, neglect or default of that person or entity [had] a causal relation to the decedent's death.” In that regard, the appellant's complaint did not allege, even upon information and belief, that the Sheriff fraudulently concealed or misrepresented material facts surrounding the death of Mr. Daft. Instead, the appellant states that the discovery of the invoice during the month after Mr. Daft's death, in and of itself, caused the appellant to “doubt the Sheriff's assertion that Mr. Daft committed suicide.” Such a broad and disconnected allegation is woefully insufficient to allow for the statute of limitations to be tolled in this case. Had the appellant alleged any causal connection or nexus between his perception of the evasive reaction by the Sheriff in response to questions about the invoice and Mr. Daft's subsequent death by hanging, the result of this case may have been different. However, that is not the situation before this Court. Thus, the circuit court did not commit error in finding that there was no factual basis to permit application of the discovery rule.

This case shows a focus on the exact allegations plead in the complaint (a la Twombly and Iqbal?) and on enforcement of the statute of limitations absent a showing which merits an exception.

Next, Timberline v. Herlan arises from a contractual squabble, and focuses on the black letter law of agency relationships, but nothing new here.

Huffman v. Goals Coal arises from the placement of a coal silo near a grade school, with the issue being whether it was within the area permitted by the DEP. Coal River Mountain Watch (“CRMW”) intervened in the case and argued the DEP and the Surface Mine Board could only consider the original maps submitted with the permit application, and could not consider any landmarks or other information, which would not allow the building of the silo. The Court emphasized that the case was not about where the silo should be built, but rather about simple statutory interpretation, under which DEP was entitled to consider markers and other evidence demonstrating the permitted area.

Finally, the Andreini case produced two separate opinions. Justice Ketchum concurred that declaring a mistrial after the verdict was improper, and with treating it as a new trial issue, but would reverse on the substantive issue of the comments by defense counsel, finding counsel "invited error" by failing to request a transcript of plaintiff's closing to which he claimed he was merely responding. Justice Workman stated that without the transcript, the court should have deferred to the trial judge's recollection.

Liberal or Conservative?

In State ex rel Kutil v. Blake, No. 34618 (June 5, 2009), the Supreme Court of Appeals reversed a ruling removing a child from the home of a same sex foster couple. This morning's Gazette headline states: "State Supreme Court rules in favor of same-sex foster parents." http://www.wvgazette.com/News/200906050247. The headline should have read "State Supreme Court rules in favor of foster child." By tomorrow morning, if not already today, we will have an outcry about activist liberal judges destroying the core of our society.

Before anyone gets on the soapbox, here is the opinion:
http://www.state.wv.us/wvsca/docs/Spring09/34618.htm. Read the opinion.

If you read the opinion carefully, instead of just looking at the result, it shows the Court follows long established precedent by requiring that in placing children, the best interest of the child must the basis for decisions affecting the placement of children in foster homes. The Court found the child was removed on motion of a guardian ad litem from a foster home described as "comfortable and physically safe for the infant respondent," because "the best interest of the child is not to be raised, short term or long term, in a homosexual environment and that the same is detrimental to the child's overall welfare and well-being.”

Examining the relevant statute, West Virginia Code § 48-22-201 (2001), the Court found no prohibition on foster placement or adoption by same sex couples and no legislative preference for married couples. The Court declined to create language in a statute where no such language existed. One basis for removing the child was overcrowding, but the Court found there was no analysis by the DHHR about which child to remove from the home consistent the best interest of the child, because the only reason for removing this kid was the issue of a same sex foster couple. By oral argument, the issue of overcrowding, due to temporary placements, was moot. The Court also found that even though the foster parents expressed a desire for adoption, that issue was not before the court - only the issue of short term placement.

So, liberal or conservative? First, I don't like these labels, because the truth is that people like to put labels on decisions not because of how the court addresses issues within its constitutional power, but because they don't agree with the result.

But, if this is the debate, this decision is conservative. The Court found no statutory prohibition on same sex foster parents or adoptive parents, so it didn't create any new law on that issue. Indeed, no one said all the other kids should have been taken from the home which was described by all as a good home. The Court required the best interest of the child to be the "polar star" or driving force. With no analysis by anyone, and no evidence the foster home was bad, how is it "liberal" or "activist" to require evidence and to require circuit courts to follow precedent? For my two cents, the Court followed established law, read exactly what our statutes say and did not create new law, and focused on the best interest of the child. I think well meaning, honest people can disagree on a lot of things, but not putting the best interest of kids first.

Self Defense in Spousal Abuse Cases Defined

Yesterday, the Supreme Court reversed the conviction of a woman convicted of murdering her husband, finding "the State failed to prove beyond a reasonable doubt that the defendant’s actions were not made in self-defense." The Court vacated the conviction and remanded the case directing the circuit court to enter a judgment of acquittal.

The Court issued three new syllabus points on the admissibility of prior abuse or threats and self defense, overruling two prior cases.

3. Where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abused or threatened the life of the defendant is relevant evidence of the defendant’s state of mind at the time deadly force was used. In determining whether the circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent, the inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when considering all of the circumstances surrounding the defendant’s use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled.

4. Where it is determined that the defendant’s actions were not reasonably made in self-defense, evidence that the decedent had abused or threatened the life of the defendant is nonetheless relevant and may negate or tend to negate a necessary element of the offense(s) charged, such as malice or intent.

5. An occupant who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury. In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry is two-fold. First, the occupant’s belief must be subjectively
reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant’s belief must be objectively reasonable when considering all of the circumstances surrounding the occupant’s use of deadly force, which is to say that another person,
similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly 0verruled.

This appears to be a pretty important decision for defendants in cases involving self defense in the face of spousal abuse or battery. I suspect it will get some press. Opinion link is below.

http://www.state.wv.us/wvsca/docs/Spring09/34268.pdf

Consensus on Twombly/Iqbal?

An excellent discussion brewing among lawyers, both academic and practicing, over the plausibility requirement - the pleading of facts to justify claims - seen in Twombly and Iqbal. The American College of Trial Lawyers and the Institute for the Advancement of the American Legal System got the ball rolling with its interim report in 2008 which called for reforms in pleading and in discovery. For a couple of thoughtful treatments, take a look at the last few posts on the Beck/Herrmann Drug & Device Blog (which give the ACTL some kudos) for the discussion of pleadings and discovery, and to the SCOTUS blog discussion which focuses more on the governmental immunity issues in the case.

In West Virginia, our Court has often cited, and long followed the Conley v. Gibson formula:

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)." Syllabus Point 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

Several friends & colleagues have alerted me to subsequent treatment of this issue by the WV Court in footnotes in various cases. Russell Jessee of Steptoe & Johnson, http://www.steptoelaw.com/attorneys/personnel/RussellDJessee,289.aspx, advises that in Highmark v. Jamie, 221 W. Va. 487, 655 S.E.2d 509 (2007), the Court said in a footnote that Conley v. Gibson is still good law in WV. But wait, there's more. Brian Peterson of the Bowles firm, http://www.bowlesrice.com/attorneys/attorney/content,148.aspx, and Al Emch of my shop, http://www.jacksonkelly.com/jk/index.asp?w=Attorneysbio&empl_uno=31, respond that Highmark was a pre Iqbal opinion, and there are conflicting footnotes in Hoover v. Moran, 662 S.E.2d 711 at n.3 (W.Va. 2008); In Re Flood Litigation Coal River Watershed, 668 S.E.2d 203 at n.10 (W.Va. 2008).

So, at the least, it is fair to say that the WV Court has not, in a syllabus point, tangled with the Conley formula, nor has it, in a footnote or otherwise, addressed Iqbal.

Drug & Device Law: http://druganddevicelaw.blogspot.com/
SCOTUS Blog: http://www.scotusblog.com/wp/analysis-a-pass-for-high-officials/#more-9553

The Fact, Just The Facts

Chiming in on the discussion of the Twombly requirements, Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, 2009 WL 1361536 (U.S. May 18, 2009), are a "must read" opinions for anyone, plaintiff or defendant, litigating in federal court. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), reinterprets the "short plain statement" requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure and ramps it up, applying a "plausibility standard." A complaint must contain "enough facts to state a claim to relief that is plausible on its face…." The Court stated

We alluded to the practical significance of the Rule 8 entitlement requirement . . . when we explained that something beyond the mere possibility of loss causation must be alleged, lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value. So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court. Some threshold of plausibility must be crossed at the outset before a . . . case should be permitted to go into its inevitably costly and protracted discovery phase.

Judge Stamp of the USDC ND WV recently recognized in Allman v. Chancellor Health, Slip Op. No. Civil Action No. 5:08CV155 (N.D.W.Va. May 26, 2009), that the "often-quoted language" from Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that dismissal under Rule 12(b)(6) is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, "earned its retirement" because it allowed any statement revealing the theory of the claim to suffice unless its factual impossibility may be shown from the face of the pleadings.

The Supreme Court made clear in Ashcroft v. Iqbal, 2009 WL 1361536 (U.S. May 18, 2009), that the Twombly analysis applies to all cases, and not just antitrust cases. Twombly and Iqbal provide another important layer of analysis in deciding whether to file a motion to dismiss in federal court where the plaintiff's complaint is long on allegations and scant on facts. For a great in depth treatment of the topic, take a look at the Herrmann & Beck Drug & Device Blog, http://druganddevicelaw.blogspot.com/.

Fourth Circuit Denies Rehearing in Mountaintop Removal case

This past week, the Fourth Circuit issued another opinion in the ongoing controversy over mountaintop removal, refusing to rehear its earlier opinion in Ohio Valley Environmental Coalition,, et al, v. Aracoma Coal Company, No. 07-1355. The effect is to lift an injunction issued by the District Court which prohibited the issuance of permits by the US Army Corps of Engineers.

OVEC and other conservation groups brought suit in the US District Court for the Souther District of West Virginia over the issuance of permits by the U.S. Army Corps of Engineers ("Corps") which "allowed the filling of West Virginia stream waters in conjunction with area surface coal mining operations."

The District Court granted summary judgment and rescinded the permits, finding they violated the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. (2000), the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (2000), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (2000), and enjoined "all activity under those permits and remanded to the Corps for further proceedings consistent with its order."

The Fourth Circuit reversed the District court's decision in an opinion filed on February 13, 2009. http://pacer.ca4.uscourts.gov/opinion.pdf/071355R1.P.pdf.

This week, the Fourth Circuit voted to deny OVEC's petition for rehearing and rehearing en banc. http://pacer.ca4.uscourts.gov/opinion.pdf/071355R1.P.pdf.

May 19 WVSCOA Opinions

Hill v. Stowers is a civil action by plaintiff Hill, who sought damages alleging he lost an election due to vote buying in Lincoln County by the defendant. Affirming dismissal of the action, the SCOAWV Court holds (1) There is no constitutional claim for damages because "as a candidate for public office, Mr. Hill could have filed an election contest. There is simply no legal basis for Mr. Hill's contention that the West Virginia Constitution allows him to pursue a private cause of action for damages against Mr. Stowers. (2) There is no civil claim for violation of the criminal statute outlawing vote buying. The Court concluded "this Court would be creating an alternative means by which an unsuccessful candidate could contest the results of an election and providing a private cause of action for damages to one individual for conduct violative of the rights of the citizenry at large. Not only would there be the potential for the outcome of such a private cause of action to be at odds with the certified results of the election at issue, there would be the potential for no finality to any election."; (3) There is no claim for damages for Unjust Enrichment because the "[Plaintiff] was not the payor of the salary and benefits that Mr. Stowers received as circuit clerk. Accordingly, there is simply no basis to allow Mr. Hill to pursue a claim against Mr. Stowers for unjust enrichment." (4) Finally, the Court held there was no claim for damages based upon "public policy."

Gainer v Walker affirms the circuit court's reversal of a four day suspension of a CPS worker for disclosing confidential notes to a guardian ad litem and lawyer in a child abuse proceeding. The notes were used to cross examine the colleague to show her testimony was inconsistent with her notes. The Court found the disclosure was appropriate because it was in the best interest of the child, thus finding the suspension was unjustified.

Little v WV Adjutant General applies West Virginia Code § 15-1B-26 (2004) which requires that "any individual employed by the West Virginia Adjutant General as a firefighter after June 2, 2004, the effective date of the statute, must also be a member of the West Virginia National Guard. Consequently, if an individual ceases to be a member of the West Virginia National Guard, then the individual can no longer be employed as a firefighter under the provisions of West Virginia Code § 15-1B-26."

Jochum v. Waste Mgt reverses summary judgment, finding that whether the defendant properly terminated a contract under its terms was a question for the jury due to ambiguity in the terms used in the contract.

Read the Opinions: http://www.state.wv.us/wvsca/Spring2009.htm.

Medical Monitoring

Pending in the West Virginia Supreme Court is duPont's appeal from a large jury verdict and medical monitoring award in a case tried in Clarksburg, Perrine v. duPont, argued on April 7, 2009. Perrine is a class action for plaintiffs exposed to emissions from a zinc smelter. Multiple issues are before the Court, including duPont's challenge to the verdict based upon error at trial, the medical monitoring plan and the punitive damage award. The briefs are available on the Court's excellent web site at http://www.state.wv.us/wvsca/calendar/april7_09ad.htm.

An interesting snd important issue in the case is the inclusion of regular CT scanning for detection of lung cancer which is part of the medical monitoring plan submitted by the plaintiffs and adopted by the trial court. This presents a really important and interesting discussion which brings into focus the role of courts in getting into the nitty gritty of future medical monitoring.

The West Virginia State Medical Association filed an amicus brief asking the Court to eliminate the CT scans as part of the medical monitoring program, arguing there is no basis to perform CT scans on asymptomatic patients and the danger of radiation to individual patients outweighs any minimal benefit of early detection. http://www.state.wv.us/wvsca/briefs/march09/34334WVMedical.pdf

Plaintiffs challenge this argument and respond that the WVSMA is relying on outdated and innacurate literature, that CT scans are a valuable tool for early detection, and available under the plan only if ordered by a physician. http://www.state.wv.us/wvsca/briefs/march09/34334ResponseWVMedical.pdf

These briefs - both really well done, by the way - spar on the efficacy and desirability of regular CT scanning, what the literature says, what the experts said, and whether the trial court's decision should be upheld.

To me, this case raises the important public policy issue of whether, when and how a court, bound by the record made in an adversary proceeding, can appropriately consider, order and implement a medical monitoring program based on a consensus in the medical and scientific community. Are dueling experts really the best way to determine how to protect plaintiffs' health, and are courts the best place to do this? At a cost of $130M (according to duPont's brief) will this program really protect the plaintiffs? This is food for thought.

ATV's not Covered by Auto Policy

As ATV use in WV continues to increase, in part because of the Hatfield McCoy ATV trail, the issue of insurance coverage where folks are injured is starting to percolate up through our courts. If you are going to ride ATV's, give rides to others, or ride along, check with your insurance agent first.

Boniey v. Kuchinski deals with insurance for ATV accidents. Boniey was injured while riding on an ATV owned and driven by Kuchinski. Kuchinski didn't have any insurance coverage, so Boniey turned to her policy with State Farm and tried for Uninsured Motorists coverage - the coverage you purchase to cover you if the person who injures you has no coverage. The circuit court (Judge Recht) granted summary judgment to Boniey, finding there was coverage under her State Farm policy.

The Supremes reversed, finding no coverage because Boniey had not purchased UM coverage applicable to off road vehicles - her policy specifically excluded them. She argued that ATV insurance was mandatory, and therefore State Farm should have included it in her UM/UIM coverage. The court also rejected this argument because mandatory coverage only applies to licensed and registered vehicles, and ATV's aren't required to be registered, the Supremes held that coverage could not be inserted into the policy. The binding precedent is set forth in three new syllabus points:

6. The primary purpose of mandatory uninsured motorist coverage is to protect innocent victims from the hardships caused by negligent, financially irresponsible drivers.

7. A motor vehicle that is not required to be registered and licensed pursuant to W. Va. Code §§ 17A-3-1, et seq. is excepted from the mandatory security provisions in the Motor Vehicle Safety Responsibility Law including motor vehicle liability coverage mandated by W. Va. Code § 17D-4-2.

8. A provision in a motor vehicle liability insurance policy excluding an off-road all-terrain vehicle or ATV from uninsured motorist coverage does not violate the intent and purpose of the uninsured motorist statute at W. Va. Code § 33-6-31(b) (1998).

But What Do They Mean?

A friend (AB in Morgantown) suggested I add some explanation of what these cases really mean. Great idea. Hard to do, but here goes.

Dan's Carworld v. Serian means that when car dealers take a trade in, pay off a loan, and then try to recover money from the buyer, they have to comply with the West Virginia Consumer Credit and Protection Act. This means that car buyers are protected by that Act from improper collection actions.

C&O Motors v. WV Paving deals with when an order of a trial court is “final” which determines whether or not it can be appealed. Basically, only “final” orders which resolve all issues in a case can be appealed because appeals courts, like the Supreme Court of Appeals of West Virginia, only want to consider appeals when all issues are resolved or finished. Appeals courts don’t want to do it piecemeal.

I'll try to add this section with each new case as we discuss them.

Dan's Carworld v. David Serian holds car dealers must comply with the West Virginia Consumer Credit and Protection Act when they pay off a loan and attempt to recoup money from the buyer:

When a consumer purchases a motor vehicle from a dealership, and the dealership accepts the trade in of another motor vehicle as payment, or partial payment, of the purchase price of the vehicle being purchased, subsequent efforts by the dealership to collect from the consumer any amounts due the dealership by virtue of the dealership's payment of the loan secured by the trade-in vehicle must comply with the West Virginia Consumer Credit and Protection Act, codified in Chapter 46A of the West Virginia Code.

http://www.state.wv.us/wvsca/docs/Spring09/34146.htm

Final Orders

In C&O Motors v. WV Paving Justice Davis again addresses final orders and appealability. The court holds that while a summary judgment on liability alone is generally not appealable, it can be if the damages part of the case is "ministerial," which in the case meant a simple award of calculable damages. The Court also discussed Rule 54 holding it doesn't apply when there is judgment on one claim against one defendant (hereafter "one on one.") Two new syllabus points:

3. An order determining liability, without a determination of damages, is a partial adjudication of a claim and is generally not immediately appealable. However, an immediate appeal from a liability judgment will be allowed if the determination of damages can be characterized as ministerial. That is, a judgment that does not determine damages is a final appealable order when the computation of damages is mechanical and unlikely to produce a second appeal because the only remaining task is ministerial, similar to assessing costs.

4. Certification under Rule 54(b) of the West Virginia Rules of Civil Procedure is permitted only upon the entry of a final judgment as to one or more but fewer than all of the claims or parties. Consequently, in an action that has only one claim against the defendant, an order granting partial summary judgment on liability against that defendant is not certifiable for appeal under Rule 54(b).

http://www.state.wv.us/wvsca/docs/Spring09/34330.htm

Surreptitious Use of Facebook Unethical

Secretly using Facebook to interview witnesses is unethical, according to a Philadelphia Bar Ass'n Opinion. A witness revealed she had a Facebook page during a deposition. Rather than compel production via subpoena, the lawyer had someone surreptiously contact the witness through Facebook to gain access to her information. Philly Bar Ass'n says surreptious contact violates the ethics rules.

Here is the ABA Journal article, http://www.abajournal.com/weekly/attorney_cant_ask_3rd_party_to_friend_witness_on_facebookand

and here is the opinion. http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf

Rule 41 in the Tank....

The Supreme Court of West Virginia reversed a dismissal for lack of prosecution under Rule 41 of the West Virgina Rules of Civil Procedure yesterday, holding in Caruso v. Pierce that cases cannot be dismissed unless the trial court has entered a scheduling order under Rule 16.

As a quick review, Rule 41, in part, allows dismissal of cases where there has been no activity for over a year. In WV, most circuits routinely entered orders in those cases, alerting plaintiff's counsel to show good cause for the lack of activity or risk dismissal. Once dismissed, the plaintiff has three terms of court - generally around 18 months - to seek reinstatement, which has been liberally granted.

This decision ends this practice and requires more management by circuit judges and effectively places the burden on defense counsel to ensure the entry of a case management order. Justices Davis and McHugh dissent, focusing on the language of the rule, and the ability of parties to proceed with discovery, indeed "prosecution" without a scheduling order.

Take a look at the opinion, Caruso v. Pierce, at the Court's excellent website:
http://www.state.wv.us/wvsca/docs/Spring09/34144.htm.

Standing Up

Take a look at this morning's Editorial in the Charleston Daily Mail which discusses U.S. Silica's aggressive defense of silica cases which contributed to the uncovering of fraudulent medical evidence as shown in the now famous Judge Graham opinion.

http://www.dailymail.com/Opinion/Editorials/200905040435

Immunity for Peer Review under HCQIA Upheld

A really good decision interpreting the immunity afforded health care providers performing peer review is Wahi v. Charleston Area Medical Center, Slip Op. No. 06-2162 (4th Cir. April 10, 2009). The Fourth Circuit affirmed summary judgment as to various claims made by the plaintiff, a cardiothoracic surgeon, arising from the suspension of his privileges at a Charleston hospital, CAMC. The opinion is a resounding affirmation of the immunity afforded hospitals under the Health Care Quality Improvement Act (HCQUIA), 42 U.S.C.A. § 11101, et seq. (West 2005).

Reviewing the four factor test for immunity in 42 U.S.C.A. § 11112(a) (West 2005), the Court found plaintiff waived his claims as to the first, second, and fourth requirements and rejected the argument that the hospital’s failure to hold a hearing denied it protection under the plain language of HCQIA’s “safe harbor” provisions. Moreover, the Court found a hearing did not occur, but found plaintiff “failed to rebut the presumption that [the hospital’s] actions satisfied the statutory requirement when the totality of the circumstances are viewed in an objectively reasonable manner.”

Finding the hospital’s “path to immunity in this case is not a recommended model, it must be evaluated considering all the events which transpired, not just those Wahi views as favorable to him,” the Court affirmed summary judgment, upholding the immunity.

Wahi demonstrates the importance of documenting interactions with physicians, and providing full information and an opportunity to respond during the peer review process. During the litigation, it shows this evidence is important to prove the totality of the circumstances. Even where a proceeding doesn’t quite follow the bylaws, it can still qualify for HCQIA immunity.

Nice work on this case by my pal, Rick Jones, of Flaherty Sensabaugh & Bonasso in Charleston, WV.

May 1 with The Supremes

The Supreme Court of Appeals of West Virginia issued a few opinions this week. They can be viewed on the Court's outstanding web site: http://www.state.wv.us/wvsca/Spring2009.htm

Simpson v. Office of the Insurance Commissioner arose from a challenge to workers' compensation regulations that prescribe permanent partial disability awards. After getting a lesser award than he wanted, the claimant appealed, arguing the appeal board "erred by upholding his award of benefits calculated in accordance with W. Va. C.S.R. Table § 85-20-C (2004) because, he claims, this Rule is unconstitutional because it violates the separation of powers doctrine." The Court rejected this argument, and issued three new syllabus points (and restated a raft of others):

10 . W. Va. Code § 23-4-3b(b) (2005) (Repl. Vol. 2005), which directs the
Workers' Compensation Board of Managers to "promulgate a rule establishing
the process for the medical management of claims and awards of disability," is
constitutional and does not violate the separation of powers.

13 . A legislative rule is valid if (1) it is submitted to the legislative rule- making
review committee for approval, as required by W. Va. Code § 29A-3-9, et seq., or
(2) the Legislature expressly exempts it from such legislative rule-making
review and approval pursuant to W. Va. Code § 29A-1-3(d) (1990) (Repl. Vol.
2002).

16 . W. Va. C.S.R. Table § 85-20-C (2004) is valid and is a proper exercise of the rule-making authority delegated to the Workers' Compensation Board of Managers by the Legislature in W. Va. Code § 23-4-3b(b) (2005) (Repl. Vol. 2005).

You constitutional gurus should read this one for the separation of powers argument. Comp folks, too, in light of other challenges to the constitutionality of the "new" comp system.

Vaughn v. Greater Hgtn Parks and Rec dismisses an appeal as improvidently granted because plaintiff appealed from rulings on partial summary judgment and a motion in limine. Black letter law case on final orders and appealability.

Zimmerer v. Romano is a property law case arising from a squabble over who owned some land sold to the State DOH, and contains black letter law on interpretation of contracts and deeds.

Strick v. Cichirrilo is an interesting stop and search case for you criminal lawyers. The defendant challenged his arrest, arguing the officer did not have probable cause to stop him for a broken tail lamp, and then field test him for sobriety after smelling alcohol. The court rejected his argument, stating the officer was correct in pulling him over. New syllabus point: "2. When one or more of the tail lamps on a vehicle originally equipped with multiple tail lamps are not in proper working condition, the provisions of West Virginia Code § 17C-5-1(a) (2004) that establish a misdemeanor offense for the operation of an unsafe or improperly equipped motor vehicle are violated."

Justice Souter to step down....

Justice Souter announced he will step down at the end of the current term, giving President Obama his first opportunity to appoint a Supreme Court Justice. See yesterday's NPR report at http://www.npr.org/templates/story/story.php?storyId=103694193.

Why Tommy Law?

This blog is an extension of email case updates I have been doing for the Defense Trial Counsel of West Virginia for several years. I plan to blog on new cases from the WV Supreme and federal courts, and other issues of interest to lawyers who try cases.

Rehearing Sought in Punitive Damages Case

The latest from the Supreme Court of Appeals of West Virginia on punitive damages is Peters v. Rivers Edge Mining, http://www.state.wv.us/wvsca/docs/Spring09/34272.htm, where it affirmed a large award, including front pay and $1 million in punitive damages in an action claiming discrimination due to receipt of workers' compensation benefits. The opinion is notable for a new syllabus point stating the Court will review punitive awards de novo. In addition, the court holds that front pay damages are recoverable in workers compensation discrimination cases. Finally, the Court restates that it can provide the constitutionally required "meaningful appellate revew" at the petition stage. Last Friday, Rivers Edge filed a petition for rehearing on the punitive damages issue, and is supported by amicus briefs by the West Virginia Chamber of Commerce, Coal Association, Manufacturers' Association and BIC.