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.....