No. 15-0819 – State of West Virginia ex rel. American Electric Power Co., Inc. v. The
Honorable David W. Nibert et al.
                                                             FILED
LOUGHRY, Justice, dissenting:                           February 10, 2016
                                                             released at 3:00 p.m.
                                                           RORY L. PERRY, II CLERK

                                                         SUPREME COURT OF APPEALS

                                                              OF WEST VIRGINIA



                 Given the preponderance of factors that weigh heavily in favor of resolving

the underlying action in our sister state of Ohio, the majority’s decision rests on decidedly

infirm grounds and, as a consequence, I am compelled to dissent. In affirming the circuit

court’s refusal to dismiss the underlying action on grounds of forum non conveniens, the

majority adopted the circuit court’s improper focus on the existence of minimal contacts with

this state while intentionally overlooking the clear indicia which demonstrate that Ohio, and

not West Virginia, is the preferred forum for this matter based on the controlling statutory

factors. See W.Va. Code § 56-1-1a (2012).



                 At the center of the suit below are allegations of harm arising from exposure

to fly ash at a landfill in Gallia County, Ohio, where the plaintiffs or their family members

worked. Nine of the seventy-seven plaintiffs are residents of West Virginia; fifty-six of the

plaintiffs are residents of Ohio.1 In making its decision that the action should remain in West

Virginia, the circuit court confused notions of general venue with the principle at issue:

whether there is a more appropriate forum outside this state to try the underlying case. Of



       1
           The remaining twelve plaintiffs reside in Kentucky or elsewhere.

                                               1

further and critical import is the trial court’s mistaken notion that the doctrine of forum non

conveniens does not apply when one of the plaintiffs is a resident of the forum in which the

lawsuit is filed. Because the trial court’s ruling is replete with both procedural and

substantive error, the majority’s refusal to issue the writ of prohibition sought by the

petitioners only served to exacerbate that error.



              The circuit court’s misdirected analysis began with its identification of Abbott

v. Owens-Corning Fiberglass Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994), superseded by

statute as stated in State ex rel. Ford Motor Co. v. Nibert, 235 W.Va. 235, 773 S.E.2d 1

(2015), as “still controlling law” on the issue of forum non conveniens. Abbott–a decision

applying common law principles of forum non conveniens–was legislatively abrogated with

the enactment of West Virginia Code § 56-1-1a in 2007. See Nibert, 235 W.Va. at 240, 773

S.E.2d at 6 (remanding based on trial court’s failure to recognize that Abbott was superseded

by enactment of W.Va. Code § 56-1-1a); Mace v. Mylan Pharmaceuticals, Inc., 227 W.Va.

666, 671 n. 3, 714 S.E.2d 223, 228 n.3 (2011) (discussing common law doctrine of forum

non conveniens and subsequent codification of separate forum non conveniens statute in

response to Morris v. Crown Equip. Corp., 219 W.Va. 347, 633 S.E.2d 292 (2006)); accord

Savarese v. Allstate Ins. Co., 223 W.Va. 119, 122-23 n.8, 672 S.E.2d 255, 258-59 n.8 (2008).

While the circuit court also utilized the eight factors set forth in West Virginia Code § 56-1­

1a, the decision it reached was greatly influenced, and arguably tainted, by this Court’s pre­


                                              2

statutory decision in Abbott.2 As this Court has made clear in our decisions issued after the

enactment of the forum non conveniens statute, the statute is the controlling and governing

law on whether “in the interest of justice and for the convenience of the parties” a case

should be “heard in a forum outside this State.” W.Va. Code § 56-1-1a(a); State ex rel.

Mylan v. Zakaib, 227 W.Va. 641, 649 n. 6, 713 S.E.2d 356, 364 n.6 (2011).



               Through its decision, the majority has inexplicably and unwisely resurrected

the Abbott decision. Not once since the enactment of West Virginia Code § 56-1-1a has this

Court relied upon or even cited favorably to Abbott in resolving a motion for forum non

conveniens. With the adoption of our forum non conveniens statute, and the doctrine’s

codification, the common law precedent was superceded. Until now, this Court has been

clear in each of its decisions to reinforce the controlling effect of West Virginia Code § 56­

1-1a. Through its lengthy and repeated recitation of the trial court’s reasoning and its

multiple references to Abbott, the majority has arguably muddied the waters of statutory

forum non conveniens. While giving lip service to the fact that a forum non conveniens

motion is to be governed by statute and not “our cases decided before the promulgation of


       2
         Not only does the circuit court state at the outset of its ruling that it “finds the
reasoning in Abbott . . . persuasive,” but it further states that “Abbott is still controlling law.”
Among the repeated references to Abbott that appear in the ruling, the circuit court found that
“Abbott makes clear that a defendant seeking dismissal must provide a detailed showing of
the additional expenses incurred by litigating in West Virginia, and the expenses must be
substantial.” That court-imposed requirement of demonstrating a quantitative increase in
litigation costs does not appear in the statute. See W.Va. Code W.Va. Code § 56-1-1a.

                                                 3

said statute,”3 the majority, through its recurring approval of the trial court’s reasoning and

extensive quoting from that reasoning, appears to be sanctioning a continued and improper

reliance on Abbott.4 In marked contrast to the Court’s decision in Nibert, where remand was

required due to the absence of clear application of the statutory factors set forth in West

Virginia Code § 56-1-1a and improper reliance on Abbott, the majority does not call into

question the basis of the circuit court’s ruling despite the trial court’s repeated reliance on

non-controlling precedent.5 As a result, rather than steering the circuit courts of this state

away from Abbott, the majority seems to be, with a wink and a nod, suggesting that you may

apply this Court’s pre-statutory precedent as long as you throw in an obligatory mention of

the statutory factors.6




       3
       State of West Virginia ex rel. American Electric Power Co. et al. v. Honorable David
W. Nibert, No. 15-0819, __ W.Va. ___ n.5, __ S.E.2d ___ n.5 (W.Va. February 10, 2016).
       4
         I find it telling that despite the lip service given in footnote 5 to the statutory control
of this issue, the majority wholly avoids any criticism or even comment on the trial court’s
repeated reference to and reliance on Abbott.
       5
         I submit that you cannot discern from the face of the trial court’s order that the actual
basis for the ruling was West Virginia Code § 56-1-1a, rather than the Abbott decision. And,
in light of this error in applying the law, the petitioners correctly recognized that the standard
of review is de novo and not an abuse of discretion. See Nibert, 235 W.Va. at __, 773 S.E.2d
at 5 (applying de novo review where, as here, petitioners asked this Court to decide whether
the trial court “erroneously based its decision on the Abbott case”).
       6
       As an additional observation, this Court should not be “rewarding” attorneys who
wrongly cite to cases of limited or questionable application without acknowledgment and
thereby steer the trial courts in the wrong direction.

                                                 4

                Besides its erroneous reliance on Abbott, the trial court’s order demonstrates

confusion with regard to applying principles of forum non conveniens. Citing to law that

was included in a previous venue statute,7 the trial court corrupted its ruling in this case with

an improper focus on matters of venue and joinder.8 Furthermore, the trial court discounted

the petitioners’ arguments with regard to the existence of an alternate forum based solely on

the existence of a West Virginia plaintiff. Numerous courts have applied the doctrine of

forum non conveniens when a resident’s suit is determined to have been filed in an

inconvenient forum. See, e.g., Davis v. Davis, 957 A.2d 576 (D.C. 2008) (affirming

dismissal of resident’s suit against Mississippi defendant on grounds of forum non

conveniens where alternate forum determined to have more connection to matters in dispute);

Warlop v. Lernout, 473 F.Supp.2d 260 (D. Mass. 2007) (granting forum non conveniens

motion despite presence of resident class members); V.G. Marina Mgmt. Corp. v. Wiener,

787 N.E.2d 344 (Ill. App. 2003) (affirming dismissal of resident’s suit on forum non

conveniens grounds); New Amsterdam Cas. Co. v. Estes, 228 N.E.2d 440, 445 (1967)

(observing that suits by state’s residents are “subject to the considerations of policy

underlying the doctrine of forum non conveniens” and are not “shield[ed] . . . from the

operation of that doctrine”).


       7
           W.Va. Code § 56-1-1(c) (2003).
       8
        By definition, as we explained in syllabus point eight of Mace, “dismissal of a claim
or action on the basis of forum non conveniens presupposes at least two forums in which the
defendant is amenable to process.” 227 W.Va. at 668, 714 S.E.2d at 225.

                                               5

              Turning to the statutory factors that control the outcome of this case, only three

of the eight factors were in dispute. This is because the plaintiffs, as the record demonstrates,

had conceded factors (1) the existence of an alternate forum; (3) that the alternate forum

could exercise jurisdiction over the parties; (4) the state in which the plaintiff(s) reside; (5)

the state in which the cause of action accrued; and (8) that the alternate forum provides a

remedy. Consequently, the only statutory factors that were truly disputed on the issue of

whether this case should be tried in Ohio, were factors (2) whether maintenance of the action

in West Virginia would work a substantial injustice to the petitioners; (6) whether the balance

of the private interests of the parties and the public interest of West Virginia predominate

in favor of the action being tried in Ohio; and (7) whether dismissing the claim would result

in unreasonable duplication or proliferation of litigation.



              Beginning with factor two, the circuit court and the majority simply got it

wrong. The only basis given by the trial court for its ruling on this factor was the existence

of a West Virginia defendant and the amenability of the defendants to personal jurisdiction.

Rather than addressing the wholesale inapplicability of venue concerns to a factor predicated

on the issue of whether the defendants would be judicially harmed by maintenance of the

suit in West Virginia, the majority chose instead to contrast the facts of this case to previous




                                               6

forum non conveniens cases.9 Falling into the net improperly cast by the respondents, the

majority seized upon a minimum contacts analysis,10 by mentioning the ties of the petitioners

to this state and then proceeding to spell out the mileage between the court houses to the situs

of the alleged exposure.11 In taking this tack, the majority goes seriously astray of the subject

factor.



               In support of the factor aimed at examining the possibility of substantial

injustice, the petitioners argued to the circuit court that the respondents’ complaint involves

novel legal theories and issues of first impression that have yet to be decided by the state of

Ohio. There is no dispute that the substantive law of Ohio law, and not West Virginia law,

will govern this matter as the situs of the cause of action exists in and is confined to Ohio.

As a result, the petitioners argued below that the need to involve the Ohio courts to resolve

          9
       These cases, as we recognized in State ex rel. North River Insurance Co. v. Chafin,
233 W.Va. 289, 295, 758 S.E.2d 109, 115 (2014), will always turn on a unique set of facts
and thus the weight to be attributed to any one factor will vary substantially.
          10
         Such an analysis would only be relevant if the issue was one of jurisdiction but it is
not. The defendants are not challenging the reach of the West Virginia courts in terms of
jurisdiction; their challenge is predicated solely on the existence of a more appropriate forum.
          11
           It stands to reason that a mileage differential has little to no bearing on the issues
relative to trying this matter that are rooted in compulsory process. This state’s procedural
rules are wholly inapplicable with regard to the issuance of subpoenas to Ohio residents.
And while the Ohio plaintiffs may be willing to travel to West Virginia, there may be
numerous former AEP employees who are Ohio residents who are unwilling to participate
in a trial in this action. Those are the types of factors that the majority should have addressed
rather than the state of equipoise with regard to the distance between the opposing court
houses and the landfill.

                                               7

matters of undecided law would cause further delays in the litigation of this matter in West

Virginia. Deferring heavily to the circuit court on this issue, the majority simply deemed the

trial court the best judge both with regard to the management of its docket and to its

professed ability to apply Ohio law.



               The sixth factor requires a balancing of the private interests of the parties and

the public interest of West Virginia in maintaining this action. This statutory factor sets forth

multiple issues for consideration and begins with an examination of whether the subject

“injury or death resulted from acts of omissions that occurred in this state.” W.Va. Code §

56-1-1a(a)(6). Identifying the private interests that relate to trying the case in this state, the

statute enumerates a litany of litigation-related concerns such as the ease of access to sources

of proof; the availability of compulsory process for attendance of unwilling witnesses; the

cost of obtaining attendance of willing witnesses; the possibility of a view of the premises;

and “all other practical problems that make trial of a case easy, expeditious and inexpensive.”

Id. (emphasis supplied). Glossing over both the additional expense and the additional time

required to seek out-of-state subpoenas from the Ohio courts, the trial court faults the

petitioners for not identifying a sum specific for its additional expenses to try this case in

West Virginia and declares that the private factors tip the scale in favor of the respondents.

The majority’s agreement with the trial court on this issue demonstrates a woeful ignorance

of what is involved in gathering evidence and trying a case of this size. Viewing the


                                                8

production of witnesses and evidence as a minor matter, easily accomplished by virtue of the

voluntary submission of the Ohio plaintiffs to the jurisdiction of this state, the majority

effectively ignores the issue of compulsory compliance. The statute seeks to determine the

costs of compelling the unwilling witnesses, not the willing witnesses. See id. The plaintiffs

are not the parties that the petitioners will have difficulty compelling: it is the former plant

employees and any lay and medical witness who are beyond the subpoena power of the West

Virginia courts that will present problems.12 Simply put, the majority, like the circuit court,

categorically dismissed any real concern for the increased costs or difficulties that the

petitioners will incur in trying this case in West Virginia.



              Turning to the second part of factor six–the public interest that this state has

in maintaining the cause of action–requires an examination of administrative difficulties

related to maintaining the action in this state,13 the interest in having localized controversies

decided within this state, the avoidance of unnecessary problems in conflict of laws or in the

application of foreign laws,14 and the unfairness of burdening citizens in an unrelated forum

       12
         The respondents conceded that many non-party witnesses reside in Ohio and thus
will not be subject to this state’s compulsory process.
       13
         See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947) (defining judicial
administration to include removal of cases bearing no relationship to locality from forum
court’s docket and avoiding unnecessary interpretation of another jurisdiction’s laws).
       14
         As already discussed above, the need to rely exclusively upon Ohio law and the
involvement of issues that are likely to require certification to the Ohio Supreme Court for
resolution, clearly bodes against West Virginia retaining this case.

                                               9

with jury duty. W.Va. Code § 56-1-1a(a)(6). Missing the boat on this second aspect of

factor six also, the majority buys lock, stock and barrel into the faulty reasoning of the trial

court. The trial court opined that Mason County citizens have a right to decide this case

because, they too, have been subjected to exposure to coal combustion waste. In framing the

issue of whether a West Virginia jury has an interest in this matter in personal terms that are

patently beyond the scope of the allegations–exposure from a landfill rather than ambient air

exposure from coal-fired power plants–the circuit court and then the majority have gone

seriously astray of the statutory objective. The legislatively-declared focus in a motion for

forum non conveniens is to decide whether it makes sense to try this matter in West Virginia

in comparison to the alternate available forum. As the petitioners rightly observe: “No good

reason exists for a West Virginia jury to be called upon to decide a case which originated in

Ohio, must be decided under Ohio law, and involves only 9 of 77 plaintiffs who reside in

West Virginia.”



              The final contested factor–number seven–looks at whether a dismissal would

result in unreasonable duplication or proliferation of litigation. In making its finding on this

factor, the trial court again displayed its misapprehension that this case could not be

dismissed under the general venue statute–W.Va. Code § 56-1-1. That finding is clearly

unrelated to the issue of duplicative litigation. As a result, the trial court’s finding on the

issue of duplicative costs–that the majority rubber stamped–is seriously flawed. Other than


                                              10

the initial costs related to the refiling of the action in Ohio, there is little reason to believe

that the costs of trying this action just miles away from its initial filing would greatly increase

the overall costs of this litigation or unnecessarily delay its resolution.



               When the focus is properly framed on the correct issues–where this case should

be tried given the location of the alleged injury-causing event in view of the quantity of out­

of-state plaintiffs and the clear need to employ both substantive and procedural Ohio laws

to try this matter–there is only one conclusion. Ohio is the obvious answer. For this Court

to affirm the lower court’s decision raises the unwelcome hint of “home cooking” and forum

shopping: two constructs that the majority of this Court should have taken more pains to

consider before casually approving the flawed reasoning and decision of the circuit court.

See Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71 (2d Cir. 2003)

(commenting that deference afforded to plaintiff’s choice of forum is limited if there are

indicia of forum shopping).



               As I previously observed in my dissent to Nibert, the forum non conveniens

statute is written in mandatory terms and directs a court to “decline to exercise jurisdiction

under the doctrine of forum non conveniens” when the movant demonstrates that there is an

alternative forum that is preferential in terms of serving the interests of justice and providing

for the convenience of the parties. W.Va. Code § 56-1-1a(a), Nibert, 235 W.Va. at __, 773


                                                11

S.E.2d at 11 (Loughry, J., dissenting). The petitioners unquestionably demonstrated the

existence of an alternate forum which is, hands down, the preferred tribunal in which to

resolve the matters at issue in this case. The majority’s decision to deny the petitioners’

motion to dismiss on forum non conveniens grounds on the facts of this case was a judicial

mistake of lasting consequences. The finite judicial resources of this state will be required

to untangle this litigation that could best be handled by the courts of the state in which the

majority of the plaintiffs reside and in which the alleged tortious conduct undisputedly took

place. To volunteer to give away our scarce judicial resources and to require this state’s

citizens to give up either their work hours or their personal time to sit on a jury to consider

matters entrenched in Ohio law when Ohio could resolve this matter more expeditiously at

no cost to this state’s citizens was not only improvident but markedly myopic. See Gulf Oil

v. Gilbert, 330 U.S. 510, 508 (1947) (“Jury duty is a burden that ought not to be imposed

upon the people of a community which has no relation to the litigation.”). As a final

observation, a possible ramification from this decision is that border state employers may

simply decide not to employ our citizens if the end result is that West Virginia courts are

unwilling to dismiss cases that deserve to be tried in their states “in the interests of justice

and for the convenience of the parties.” W.Va. Code § 56-1-1a(a).



              Accordingly, I respectfully dissent.




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