No. 14-0207 - State of West Virginia ex rel. J.C., a minor, by and through his mother and
next friend, Michelle Cook, et al. v. The Honorable James P. Mazzone, Lead Presiding
Judge, Zoloft Litigation, Mass Litigation Panel; Pfizer, Inc.; Roerig, a division of Pfizer, Inc.;
and Greenstone, LLC, f/k/a Greenstone, LTD
                                                                           FILED
                                                                         May 27, 2014
                                                                         released at 3:00 p.m.
                                                                         RORY L. PERRY II, CLERK
                                                                       SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA


LOUGHRY, Justice, concurring:

               I agree with the majority’s holdings regarding Rule 3(a) and Rule 20 of the

West Virginia Rules of Civil Procedure, but write separately to emphasize that the majority’s

opinion should not be read as diminishing the avenues available to litigants for challenging

whether parties were permissibly joined into one action under Rule 20. The Panel’s stated

intent in proposing what became the 2008 amendment to Rule 3(a) clearly exceeded what

was contemplated by this Court in Cable,1 as the majority has fully explained. While the

Panel urges us to interpret Rule 3(a) as a substantive rule creating multiple civil actions2 and

       1
         I have reviewed the file maintained by this Court regarding the amendment to Rule
3(a) in 2008, and its contents confirm that the purpose of the amendment was to allow for the
collection of multiple filing fees where one complaint is filed naming multiple, unrelated
plaintiffs, as discussed in Cable.
       2
         The Panel forecasted its interpretation of Rule 3(a) in its Findings of Fact and
Recommendation of the Mass Litigation Panel filed in Abbott v. Earth Support Services
d/b/a/ Micon, Inc., et al. (Civil Action No. 08-C-138, Circuit Court of Wyoming County),
wherein in it explained that had the Abbott case been filed after the 2008 amendment to Rule
3(a), it would have been “99 separate civil actions instead of one civil action with 99
plaintiffs[]” and would have met the definition of mass litigation under Trial Court Rule 26­
04(a). Similarly, this Court’s interpretation of Rule 3(a) was forecasted in the case at bar
when the Chief Justice denied the defendants’ motion to refer this litigation to the Panel on
                                                                                (continued...)

                                                1

warns that any other interpretation could result in West Virginia from becoming a “dumping

ground for foreign lawsuits,” the fact remains that there are established tools to prevent such

an event from occurring. Challenges, such as a motion to dismiss based on forum non

conveniens under West Virginia Code § 56-1-1a (2012),3 or a motion to dismiss fraudulently

       2
        (...continued)
the basis that there was only one case, although there were nineteen plaintiff families who
had been assigned multiple civil action numbers by the Wayne County Circuit Court Clerk.
It was only after a second complaint was filed by additional plaintiffs that the Chief Justice
granted the subsequent motion to refer to the Panel, which was filed by the plaintiffs.
       3
           West Virginia Code § 56-1-1a provides, in part, as follows:

                        a) In any civil action if a court of this state, upon a timely
                 written motion of a party, finds that in the interest of justice and
                 for the convenience of the parties a claim or action would be
                 more properly heard in a forum outside this state, the court shall
                 decline to exercise jurisdiction under the doctrine of forum non
                 conveniens and shall stay or dismiss the claim or action, or
                 dismiss any plaintiff: Provided, That the plaintiff’s choice of a
                 forum is entitled to great deference, but this preference may be
                 diminished when the plaintiff is a nonresident and the cause of
                 action did not arise in this state. In determining whether to grant
                 a motion to stay or dismiss an action, or dismiss any plaintiff
                 under the doctrine of forum non conveniens, the court shall
                 consider:

                 (1) Whether an alternate forum exists in which the claim or
                 action may be tried;

                 (2) Whether maintenance of the claim or action in the courts of
                 this state would work a substantial injustice to the moving party;

                 (3) Whether the alternate forum, as a result of the submission of
                 the parties or otherwise, can exercise jurisdiction over all the
                 defendants properly joined to the plaintiff’s claim;
                                                                                         (continued...)

                                                  2

or improperly joined parties,4 are available to litigants. In short, misjoined claims and parties

       3
           (...continued)

                 (4) The state in which the plaintiff(s) reside;

                 (5) The state in which the cause of action accrued;

                 (6) Whether the balance of the private interests of the parties
                 and the public interest of the state predominate in favor of the
                 claim or action being brought in an alternate forum, which shall
                 include consideration of the extent to which an injury or death
                 resulted from acts or omissions that occurred in this state.
                 Factors relevant to the private interests of the parties include,
                 but are not limited to, the relative ease of access to sources of
                 proof; availability of compulsory process for attendance of
                 unwilling witnesses; the cost of obtaining attendance of willing
                 witnesses; possibility of a view of the premises, if a view would
                 be appropriate to the action; and all other practical problems that
                 make trial of a case easy, expeditious and inexpensive. Factors
                 relevant to the public interest of the state include, but are not
                 limited to, the administrative difficulties flowing from court
                 congestion; the interest in having localized controversies
                 decided within the state; the avoidance of unnecessary problems
                 in conflict of laws, or in the application of foreign law; and the
                 unfairness of burdening citizens in an unrelated forum with jury
                 duty;

                 7) Whether not granting the stay or dismissal would result in
                 unreasonable duplication or proliferation of litigation; and

                 (8) Whether the alternate forum provides a remedy.
       4
           Rule 21 of the West Virginia Rules of Civil procedure provides:

                 Misjoinder of parties is not ground for dismissal of an action.
                 Parties maybe dropped or added by order of the court on motion
                 of any party or of its own initiative at any stage of the action and
                 on such terms as are just. Any claims against a party may be
                                                                                        (continued...)

                                                  3

may still be addressed through appropriate procedural and substantive challenges.5



                 I also agree with the majority that Rule 3(a) cannot be interpreted in a manner

that essentially nullifies Rule 20, which provides that “[a]ll persons may join in one action

as plaintiffs . . . .” While I appreciate the Panel’s argument regarding the manner in which

Rule 3(a) dovetails with Trial Court Rule 26.04(a)(2) as it pertains to “civil actions,” the

Panel failed to address permissive joinder under Rule 20 in its brief filed in this Court, even

though the interplay between Rule 20 and Rule 3(a) was the focus of the other parties’

arguments in this matter. In fact, the Panel’s lack of discussion in this regard is arguably an

implicit recognition of the conflict between Rule 20 and the Panel’s interpretation of Rule

3(a). Additional rule amendments and revisions may well be necessary to address the Panel’s

litigation management concerns, but it must be done in a manner that does not affront

permissive joinder.



                 Lastly, I do not understand why the majority felt compelled to recommend the

Federal Judicial Center’s Manual for Complex Litigation, Fourth (2004), to the Panel as a


       4
           (...continued)

                  severed and proceeded with separately.

       5
        Also, as the majority explains, the Panel may use procedural mechanisms to
procedurally (but not substantively) divide plaintiffs into relevant groups, or to “devise a
scheme” that permits the defendants to raise assert dispositive motions based on issues such
as statute of limitations as to certain plaintiffs.

                                                4

“good source of suggestions on how to efficiently handle complex mass litigation issues[.]”

The majority quotes the federal manual’s definitions of “liaison counsel” and “lead counsel,”

as if these definitions and ideas are a novel concept, when our own Trial Court Rule 26.05

already defines these very terms. And, given the obvious similarities between the definitions

of these terms in the federal manual versus our Trial Court Rules, our definitions may well

have been based on the definitions in the federal manual. Indeed, I am confident that the

Panel has utilized this federal manual on many occasions for guidance and “suggestions” in

its development of mechanisms and plans for organization and procedure of mass litigation.

Consequently, I find the majority’s recommendation of this federal manual to the Panel to

be unnecessary.



               For the reasons set forth above, I respectfully concur in the majority’s holdings,

as reflected in its opinion.




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