The Supreme Court of Appeals of West Virginia voted 4-1 yesterday to grant DuPont’s petitions for appeal in Perrine v. DuPont, the medical monitoring class action that resulted in a verdict of nearly $400 million. I reviewed the issues on appeal in this post last month.
On Wednesday, DuPont presented its appeals from the verdict and from the circuit court’s order requiring it to indemnify T. L. Diamond, a former owner of the zinc smelter site. Ken Ward, Jr. wrote about the argument in yesterday’s Charleston Gazette.
In its argument, DuPont’s counsel questioned the adequacy of the review provided by the Supreme Court of Appeals in light of recent United States Supreme Court decisions, which was also the focus of West Virginia Governor Joe Manchin’s amicus brief.
Justice Robin Davis pointed out that Article VIII, Section 4 of the West Virginia Constitution provides that:
A writ of error, supersedeas or appeal shall be allowed by the supreme court of appeals, or a justice thereof, only upon a petition assigning error in the judgment or proceedings of a court and then only after the court, or a justice thereof, shall have examined the record and is satisfied that there probably is error in the record, or that it presents a point proper for the consideration of the court.
She suggested that the Court’s approach simply adheres to this standard, and did not seem convinced that adequate appellate review of a punitive damages award, as defined by the United States Supreme Court, required the Supreme Court of Appeals to accept a party’s appeal, as DuPont and Governor Manchin contended.
By contrast, Justice Larry Starcher announced that without making any judgment on the merits of DuPont’s appeal, he would vote to grant because of his belief that the Court automatically should review any punitive damages award.
Justice Davis was the only vote against DuPont’s appeals. Senior Status Justice Thomas McHugh recused himself because his former firm represents DuPont and Justice Brent Benjamin recused himself because his former firm represents T. L. Diamond. Circuit Court Judges Alan Moats and Derek Swope, respectively, were appointed to replace them.
On September 9. the plaintiffs presented their appeal from the circuit court’s order granting DuPont’s summary judgment motion as to class composition. The Court granted their petition 3-1 (Justice Davis voted not to grant) and consolidated the plaintiffs’ appeal with DuPont’s.