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.