I intended to post this yesterday, but ran out of time.  In any event, the Supreme Court of Appeals of West Virginia started its Fall Term yesterday, which runs through November 21.  The Court has posted several of its motion and argument dockets on its calendar, which also includes the Court’s writ, decision, opinion, and administrative conferences.

    For cases on the argument docket, which are appeals or petitions that the Court has accepted, the Clerk’s office posts the parties’ briefs in PDF format.  For cases on the motion docket, which have not yet been accepted or refused by the Court, the parties’ pleadings are not available online.  Although the size of the Court’s dockets precludes an extensive discussion of all or even most of the cases,  I will attempt to identify cases, particularly on the argument docket, that present important issues.

    Today, the Court will hear argument in State ex rel. Chemtall Inc., et al. v. The Honorable John T. Madden, et al., No 33380, which involves claims for medical monitoring by a proposed class of former coal preparation plan workers who were exposed to polyacrylamide flocculants, which are products used to treat coal wash water at preparation plants.  The petitioners, who are the defendants, are seeking a writ of prohibition and/or mandamus against the Circuit Court of Marshall County to prevent enforcement of two orders that the petitioners claim are contrary to the Supreme Court’s prior opinions in this case.

    The Supreme Court has issued decision regarding the Chemtall case on two earlier occasions.  In the first decision, State of West Virginia ex rel. Chemtall Inc. v. Madden, 607 S.E.2d 772 (W.Va. 2004), the Court vacated the Circuit Court’s certification of a class that included plaintiffs from seven states, some of which did not recognize medical monitoring, and directed the Circuit Court to consider whether such differences in the law would preclude the adjudication of the claims  arising from several states on a class-wide basis.  The second decision, Stern v. Chemtall Inc., 617 S.E.2d 876 (W.Va. 2005), reversed a denial of intervention sought by two coal preparation plant workers, who had been plaintiffs in an earlier suit, and a water treatment worker.    

    The petitioners challenge the Circuit Court’s decisions to allow the water treatment worker to participate in the action, to permit the use a punitive damages multiplier in a medical monitoring action, and to allow the common adjudication of claims that arise under West Virginia and Pennsylvania’s medical monitoring laws. 

    I had written about West Virginia’s medical monitoring law in an earlier post dealing with Mattel’s recall of defective toys.  I think the most significant issues presented in this case are whether the the punitive damages multiplier is permissible and whether the trial court can adjudicate claims that arise under both West Virginia and Pennsylvania medical monitoring laws.  As I read the parties’ pleadings, the law in West Virginia is unsettled on both of those issues, and each has potentially tremendous consequences.