Justices back judge on dismissal of railroad asbestos suits

Steve Korris Jul. 10, 2008, 12:52pm


CHARLESTON, W. Va. (Legal Newsline) - In a fireworks display two days before America's birthday, the West Virginia Supreme Court of Appeals launched asbestos suits of more than 1,000 railroad workers into the sky so they can fall where they belong.

The Justices affirmed Circuit Judge Arthur Recht of Wheeling, who dismissed mass suits against railways CSX and Norfolk Southern so plaintiffs can sue elsewhere.

They rejected a Pittsburgh lawyer's plea that the U.S. Constitution affords every American the right to sue in West Virginia regardless of any connection to the state.

They chose not to apply a 2006 decision, Morris v. Crown Equipment, granting West Virginia jurisdiction in a dispute from another state.

In Morris, they wrote, the roster of defendants included a West Virginia corporation.

Without that connection, they decided, Morris did not apply to the asbestos suits.

Scott Marshall, Robert Daley and Aaron Rihn, of Robert Pierce and Associates in Pittsburgh, filed the suits in various courts on behalf of more than 1,000 railroad workers.

They asserted claims under the Federal Employers Liability Act, which grants broad latitude in fixing jurisdiction for workers in motion.

The Supreme Court of Appeals consolidated the suits in Kanawha Circuit Court and assigned them to Recht as visiting judge for asbestos cases.

The railways moved to dismiss, and the motion remained pending while the Supreme Court of Appeals thrashed out its opinion in Morris.

Recht granted the motion, ruling that Morris did not apply.

Plaintiffs appealed, quoting from the U. S. Constitution that "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

The Justices rejected that argument and declared they found nothing in federal law imposing a duty on Recht to hear the claims.

Luke Lafferre, Alicia Deligne and Marc Williams of Huddleston Bolen in Huntington represented CSX and Norfolk Southern.

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