W.Va. Mass Litigation Panel operates as 'cohesive unit'

By Kyla Asbury | Feb 14, 2014

CHARLESTON, W.Va. (Legal Newsline) - The chairman of West Virginia's Mass Litigation Panel says the judges have come to act as a single unit over the last 18 years.

During its nearly two decades, West Virginia's Mass Litigation Panel has been working on a multitude of mass litigation that spans the entire state.

Nineteenth Judicial Circuit Judge Alan D. Moats, who has been on the panel since 2002 and has been chairman since 2007, said the panel has evolved a lot over the last 18 years.

"We have come to operate as a cohesive unit instead of single judges," Moats said. "Instead of one judge presiding over a case, we have a group of three judges assigned to the trial side and two or three to work on resolutions in order to work together."

The panel was established to help consolidate cases from around the state.

Moats said if you have multiple judges across the state working on a multitude of cases involving the same event, you could have conflicting rulings or they could go in different directions.

"With the MLP, all those cases are consolidated and it saves time and we are ultimately able to decide the cases at one point," Moats said.

Kimberly R. Fields, the Mass Litigation Panel manager, said the MLP was established in 1996 to handle the growing amount of asbestos cases and has since handled many different types of cases.

In 2008, the West Virginia Supreme Court of appeals adopted a process for efficiently managing and resolving mass litigation and amended Trial Court Rule 26. This process better explained how the MLP would run.

Trial Court Rule 26 defined the MLP, how it would be used, how motions would be referred to the MLP and the duties of the panel.

The panel consists of seven active or senior status circuit court judges, each appointed for a term of three years. The chief justice of the West Virginia Supreme Court of Appeals designates a panel member to serve at its chair to preside over the activities of the panel and to report to the state Supreme Court annually.

The other judges on the panel include 10th Judicial Circuit Judge John A. Hutchison; Eighth Judicial Circuit Judge Booker T. Stephens; 25th Judicial Circuit Judge Jay M. Hoke; Second Judicial Circuit David W. Hummel Jr.; Ninth Judicial Circuit Judge Derek C. Swope; and First Judicial Circuit James P. Mazzone.

In 2009, the West Virginia Supreme Court of Appeals amended Rule 26.02 of the West Virginia Trial Court Rules to increase the number of active or senior status judges to serve on the Mass Litigation Panel to seven judges. Previously, there were only six judges on the panel.

The MLP deals with mass litigation, which means two or more civil actions that are pending in one or more circuit courts across the state that involve common questions of law or fact in mass accidents or single catastrophic events in which a number of people are injured, or involve common questions of law or fact in personal injury mass torts implicating numerous claimants in connection with widely available or mass-marketed products.

One of the MLP's duties is to develop and implement case management and trial methodologies to fairly and expeditiously resolve mass litigation that is referred to the panel by the chief justice of the West Virginia Supreme Court of Appeals.

Moats said each of the judges have had specialized training and went to the National Judicial College in Reno, Nev., to gain knowledge for working on the panel.

"We wanted to have enough knowledge to bring back to the MLP and to figure out the best procedures and to better serve those involved," Moats said.

Moats said when electronic filing, known as e-filing, was introduced in 2008, that made the judges able to work that much better together.

"We are all across the state and cannot always work side-by-side, but, with e-filing, we are able to see the same documents, no matter where we are," Moats said. "We have access to all of the documents pertaining to our cases."

Moats said e-filing is one of the greatest improvements to the MLP, as it has made it a lot easier to be spread across the state and still feel like they are connected.

In the past, the MLP has worked on asbestos personal injury litigation, FELA asbestos litigation, Digitek litigation, flood damage litigation, overweight trucks litigation, tobacco litigation, float-sink litigation, the Mingo County coal slurry litigation and, most recently, the Mountain State University litigation.

Attorneys involved in the recent water contamination by Freedom Industries of West Virginia American Water customers in parts of nine West Virginia counties are seeking to have the multitude of class action lawsuits filed in several counties to be consolidated and sent before the panel.

It will be up to Supreme Court Chief Justice Robin Jean Davis to decide if the cases meet the mass litigation panel's criteria.

The motion, which was filed Jan. 11 by Anthony J. Majestro and J.C. Powell of Powell & Majestro PLLC; James C. Peterson of Hill, Peterson, Carper, Bee & Deitzler PLLC; and Timothy C. Bailey of Bucci, Bailey & Javins LC, sought to refer the motion to Davis with the request that she refer it to the MLP, according to the expedited motion.

There have been at least 30 lawsuits filed against Freedom Industries for the water contamination in Kanawha Circuit Court, several in Putnam Circuit Court, a few in Boone Circuit Court and one in the U.S. District Court for the Southern District of West Virginia at Charleston.

On Jan. 9, Freedom Industries negligently and recklessly caused a chemical leak at its Etowah River Terminal plant, which resulted in a chemical spill into the Elk River.

The chemical, 4-methylcyclohexane methanol, is a foaming agent used in the coal preparation process. The nine counties affected went weeks without running water and are still plagued with the licorice-sweet smell of the chemical.

On Jan. 17, just eight days after the water contamination crisis, Freedom Industries filed for Chapter 11 bankruptcy protection.

On Jan. 29, Freedom's suggestion of bankruptcy was filed in the U.S. District Court for the Southern District of West Virginia at Charleston.

"The United States Bankruptcy Code, Section 362(a) (1), (2), (4), (5) and (6) provide that the filing of a petition operates as a stay of the continuation of any action or proceeding against the debtor, any action or proceeding to recover a claim against the debtor to enforce a judgment obtained that arose before the commencement of the case, to create, perfect or enforce any lien, or to collect or recover a claim that arose before the commencement of the case," the document states.

Gary Southern, the company's president, signed a bankruptcy petition, estimating Freedom's debts at $10 million or less, but the cost of the water contamination disaster is likely to run much higher.

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