Opinion
No. 19-1006
11-20-2020
STATE of West Virginia EX REL. SURNAIK HOLDINGS OF WV, LLC, Petitioner v. The Honorable Thomas A. BEDELL, Sitting by Assignment as Judge of the Circuit Court of Wood County and Paul Snider, on Behalf of Himself and a Class of Others Similarly Situated, Respondents
Ryan McCune Donovan, J. Zak Ritchie, Andrew C. Robey, Hissam Forman Donovan Ritchie PLLC, Charleston, West Virginia, Attorneys for the Petitioner. Alex McLaughlin, John H. Skaggs, Calwell Luce diTrapano PLLC, Charleston, West Virginia, Attorneys for the Respondent, Paul Snider, on behalf of himself and a class of others similarly situated.
Ryan McCune Donovan, J. Zak Ritchie, Andrew C. Robey, Hissam Forman Donovan Ritchie PLLC, Charleston, West Virginia, Attorneys for the Petitioner.
Alex McLaughlin, John H. Skaggs, Calwell Luce diTrapano PLLC, Charleston, West Virginia, Attorneys for the Respondent, Paul Snider, on behalf of himself and a class of others similarly situated.
Jenkins, Justice: This matter is before this Court on a petition for writ of prohibition. Respondent the Honorable Thomas A. Bedell, sitting by assignment as Judge of the Circuit Court of Wood County, certified a class action against Petitioner, Surnaik Holdings of WV, PLLC ("Surnaik"). The circuit court named Respondent Paul Snider ("Mr. Snider") as class representative. Surnaik asserts that the circuit court clearly erred in certifying this class and asks this Court to prohibit the circuit court from conducting any further proceedings in this case until the circuit court has vacated its class certification order. Based upon the record before us, the arguments of the parties, and the applicable law, we find that the circuit court exceeded its jurisdiction by failing to conduct an appropriate and thorough analysis of the West Virginia Rules of Civil Procedure 23(a) and 23(b) class certification requirements. Accordingly, we grant the writ of prohibition as moulded and vacate the circuit court's order certifying the class action.
I.
FACTUAL AND PROCEDURAL HISTORY
In the early morning hours of Saturday, October 21, 2017, a fire erupted at a warehouse owned by Surnaik in Parkersburg, West Virginia. The fire burned from October 21 to October 29. Mr. Snider asserts that the fire "emitted a plume of smoke—consisting primarily of particulate matter and gases—that adversely impacted neighboring property owners and lessees for days, residents as well as businesses and government agencies." Mr. Snider further alleges that "[t]he most obvious and immediate adverse impact—as well as the one that is common to all members of the class—is annoyance resulting from the smoke itself, which at certain concentrations is irritating to the nose and throat of most[,] if not all[,] persons."
Mr. Snider, on behalf of himself and on behalf of a class of others similarly situated, filed a complaint against Surnaik in the Circuit Court of Wood County, on October 30, 2017. In the complaint, Mr. Snider alleged negligence; reckless, willful, and wanton indifference motivated by financial gain; nuisance; trespass; and "class action allegations." Furthermore, in the complaint, Mr. Snider sought to "represent a class that consists of all residents and businesses within an 8.5 mile radius of the warehouse, which was located on the 3800 block of Camden Avenue, in Parkersburg, West Virginia." Mr. Snider indicated that "[t]he radius includes at least the following cities, towns, and population clusters in the State of West Virginia: Parkersburg, Vienna, Blennerhassett, Lubeck, Washington, and Waverly. It also includes one population cluster in the State of Ohio, around Belpre, Ohio." Mr. Snider requested compensatory damages in the form of diminution in value of property, loss of the right to use and enjoy property, lost business profits, and personal injuries, as well as punitive damages. Surnaik answered the complaint in November 2018.
Surnaik represented that
[i]n a race to the courthouse, five separate class action cases were filed against [it] or related entities. This case is the only active case remaining, as the other four cases have either been dismissed with prejudice or otherwise abandoned. See Barker, et al. v. Saurabh Naik, et al. , No. 2:17-cv-4387, 2018 WL 3824376 (S.D. W. Va.) (dismissed with prejudice); Timothy Callihan, et al. v. Surnaik Holdings of WV, LLC, et al. , No. 2:17-cv-4386, 2018 WL 6313012 (S.D. W. Va.) (pending, but abandoned); Steve Mohwish, et al. v. Sirnaik , LLC, et al., No. 2:17-cv-4417 (S.D. W. Va.) (voluntarily dismissed); Snodgrass v. Surnaik Holdings of WV, LLC , No. 18-C-35, 2018 WL 3625308 (Wood County) (voluntarily dismissed).
It appears from the limited record before us that the large amount of time between the filing of the complaint and the filing of the answer is because the matter had been removed to federal court and then remanded back to the circuit court prior to the filing of an answer.
Subsequently, on April 30, 2019, Mr. Snider filed a motion for class certification and memorandum of law in support thereof ("the motion"). In the motion, Mr. Snider defined the class as follows:
Mr. Snider noted that this class of individuals "includes the small percentage (roughly 14%) of property possessors that are citizens of Ohio[.]"
All lawful possessors—primarily owners and lessees—of real property located within one [of] the isopleths depicted on the maps attached hereto as Exhibits 1-A, 1-B, and 1-C, who did one or more of the following in October 2017:
(1) Resided on the property within the isopleth; or
(2) Conducted business operations, including those of a nonprofit business, on the property within the isopleth; or
(3) Conducted state, county, [or] municipal government operations on the property within the isopleths.
Mr. Snider further alleged that the requirements of West Virginia Rule of Civil Procedure 23(a) were met: numerosity, commonality, typicality, and adequacy of representation. In addition, Mr. Snider asserted that this action also met the requirements of Rule 23(b)(3) —predominance and superiority. On May 31, 2019, Surnaik responded to Mr. Snider's motion, contending that class certification is not appropriate because (1) a class cannot be certified when a significant number of proposed class members are uninjured; (2) a class action is not superior to other available methods for adjudication of the matter; (3) Mr. Snider is not an adequate representative because he knows little about the case and admitted he could not be fair to certain class members; and (4) Mr. Snider's claims are not typical of the class claims because he has not suffered any property damage. As such, Surnaik urged the circuit court to deny the motion for class certification because Mr. Snider failed to satisfy all four prerequisites contained in Rule 23(a) —namely typicality and adequacy of representation—and the predominance and superiority requirements of Rule 23(b)(3). Additionally, Surnaik contended that Mr. Snider failed to satisfy the implicit requirement of ascertainability, as well as standing. Mr. Snider then filed a reply in support of his class certification motion.
West Virginia Rule of Civil Procedure 23(a) provides as follows:
(a) Prerequisites to a class action. —One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
West Virginia Rule of Civil Procedure 23(b) provides that a class action may be maintained only if the prerequisites of Rule 23(a) are met in addition to at least one of the following requirements:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of
(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
W. Va. R. Civ. P. 23(b).
The circuit court held a hearing on the motion for class certification on July 8, 2019. Following the hearing, the circuit court entered its order granting class certification and essentially adopted Mr. Snider's class definition. In the "Findings of Fact" section of its order, the circuit court noted that Mr. Snider provided expert testimony "delineating the geographical boundary of the area allegedly impacted by a 24-hour average of at least three micrograms per cubic meter (‘ug/m3’) of fine particles less than 2.5 microns in size (‘PM2.5’)." The circuit court further noted that Mr. Snider submitted expert testimony "tending to show that those levels of fine particulate matter increase the risk of injury, resulting in death, asthma, heart attacks, and coronary artery thickening in a small percentage of persons subjected to them, and some level of discomfort in a much larger percentage of individuals." Lastly, the circuit court noted that Mr. Snider provided "evidence tending to show that the area within the same geographical boundary experienced a peak total suspended particulate level (‘TSP’) of at least 100 ug/m3." The circuit court went on to
A transcript of the hearing was not included in either the joint appendix or the supplemental appendix filed in this matter.
find[ ] that the following requirements for certification are met:
a. Numerosity
The Class consists of an estimated 57,000 residents and additional businesses in the area surrounding the warehouse fire which are alleged to have suffered damages as a result of the Warehouse Fire. Joinder is impracticable[,] and the numerosity requirement of W. Va. R. Civ. P. 23(a) is satisfied.
b. Commonality
Common questions of law and fact exist for each of the Class Members with regard to the alleged conduct of the Defendant. Among these are questions relating to the Defendant's liability for their alleged negligent failure to maintain the fire protection system in the warehouse and the geographical area impacted by harmful levels of smoke from the fire. These issues are central to this case and are sufficient to establish commonality under W. Va. R. Civ. P. 23(a).
c. Typicality
Class Representative Paul Snider testified in his deposition that he suffered noxious levels of smoke in his home for days following the Warehouse Fire and that he and his wife both suffered respiratory
impairments—in his case, difficulty breathing diagnosed for the first time as asthma—as a result of the Warehouse Fire. The Court finds that these claims are typical of absent Class Members in this litigation with elements of proof and damages typical of absent Class Members. The bases for compensation asserted by the Class Representative—which include damages for annoyance and inconvenience from having his home invaded by noxious smoke—are consistent with and typical of the claims available to absent Class Members, including those claiming property damage. Therefore, the element of typicality is satisfied under W. Va. R. Civ. P. 23(a).
d. Adequate Representation
The Class Representative's interests do not conflict with, and are co-extensive with, those of absent Class Members. Paul Snider, the Class Representative, testified at the hearing and demonstrated sufficient interest in, knowledge of, and involvement with the case. Additionally, this Court recognizes the experience of the counsel designated as Class Counsel below, and finds that the requirement of adequate representation under W. Va. R. Civ. P. 23(a) has been fully met.
e. Predominance of Common Issues
Plaintiff[ ] commonly assert[s] that the Defendant was negligent and recklessly indifferent to the well-being of its neighbors in failing to maintain its fire protection system, and that an award of compensatory and punitive damages to residents, businesses, and government agencies in the area impacted by noxious and harmful levels of smoke from the Warehouse Fire is therefore appropriate. The Court finds that the overarching liability issues predominate over any individual questions, favoring class treatment consistent with W. Va. R. Civ. P. 23(b)(3).
f. Superiority of the Class Action Mechanism
The class action mechanism is ideally suited for resolving these matters. Class certification promotes efficiency and uniformity of judgment, among other reasons, because the many Class Members will not be forced to separately pursue claims arising from the same incident, which might lead to inconsistent verdicts. The Court specifically finds that the class action mechanism is superior to any available mechanisms for aggregating many individual claims, including before the West Virginia Mass Litigation Panel, because the damages suffered by most class members are too small to warrant the associated costs of pursuing such cases, such as basic filing fees, deposition fees, attorney time in processing, and expert witness fees.
In the "Conclusions of Law" section of its order, the circuit court further found that "[t]he weight of authority from around the United States, in state and federal courts, favors class-wide treatment and resolution in single event mass catastrophe cases, particularly of non-personal injury and property-based classes, and particularly for the resolution of the common issues of liability." Additionally, the circuit court stated that despite Surnaik's argument that many class members are uninjured because not everyone suffered bodily injury or will require property clean-up, "the universe of legally cognizable injuries is not so narrowly defined." The circuit court concluded that "owning or residing in a house that is invaded by noxious or harmful levels of smoke negligently released from a fire is a cognizable injury." It found that Mr. Snider had standing because he "testified in his deposition that his own house was invaded by smoke from the Warehouse Fire and that the invasion by this smoke was perceptible and noxious, that he felt compelled to wear a dust mask, ... that it was unpleasant[,]" and that "this alleged injury is a legally cognizable injury[.]" The circuit court explained that the testimony of Mr. Snider's experts
taken together, supports the inference that all putative Class Members—everyone with[in] the Class Area set forth in the attached maps—suffered the legally cognizable injury of having had their homes or businesses invaded by harmful and noxious levels of smoke negligently released from a
fire, whether or not those individuals suffered any bodily injury.
Consequently, the circuit court "conclude[d] that all putative Class Members and [Mr. Snider,] himself[,] suffered an alleged cognizable injury, and that [Mr. Snider] has submitted evidence supporting these allegations of cognizable injury." It further concluded that "[t]he Class action mechanism is plainly superior to any other mechanism available to Class Members." The circuit court then laid out its trial plan which included two phases: (1) a class wide trial on common issues and (2) follow-up hearings for individual determinations regarding losses and damages. After the entry of the circuit court's order, Surnaik filed the instant petition on November 4, 2019, seeking to prohibit enforcement of the class certification order.
II.
STANDARD FOR ISSUANCE OF WRIT
Generally, "[t]his Court will review a circuit court's order granting or denying a motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil Procedure [1998] under an abuse of discretion standard." Syl. pt. 1, In re W. Va. Rezulin Litig. , 214 W. Va. 52, 585 S.E.2d 52 (2003). However, Surnaik seeks a writ of prohibition, and we have said that " ‘[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.’ Syllabus Point 2, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977)." Syl. pt. 1, State ex rel. Healthport Techs., LLC v. Stucky , 239 W. Va. 239, 800 S.E.2d 506 (2017). We previously have set forth the following standard for issuance of a writ of prohibition when it is alleged a lower court is exceeding its authority:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. pt. 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996) ; see also Rezulin , 214 W. Va. at 62, 585 S.E.2d at 62 (same). While we need not find that all factors are present, we attach "substantial weight" to the factor that asks "whether the lower tribunal's order is clearly erroneous as a matter of law[.]" Id. Further, we have held that "an order awarding class action standing is ... reviewable, but only by writ of prohibition." State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot , 242 W. Va. 54, 61 n.12, 829 S.E.2d 54, 61 n.12 (quoting Syl. pt. 2, in part, McFoy v. Amerigas, Inc. , 170 W. Va. 526, 295 S.E.2d 16 (1982) ). With these considerations in mind, we turn to the petition before us.
III.
DISCUSSION
In this matter of prohibition, Surnaik asserts the circuit court clearly erred in several respects in certifying the class action. First, Surnaik argues that the circuit court erred by certifying a class in which only 10% of the class is likely to have been injured, thereby failing to satisfy the predominance requirement of West Virginia Rule of Civil Procedure 23(b)(3). Second, Surnaik contends that mass accident and toxic tort matters, such as this one, are not appropriate for class adjudication pursuant to West Virginia Rule of Civil Procedure 23(b)(3). Third, Surnaik asserts that because Mr. Snider conceded he did not suffer any property damage, the requirements of standing and typicality preclude him from representing a class seeking that relief. See generally W. Va. R. Civ. P. 23(a). Fourth, Surnaik alleges that the circuit court erred by certifying a class whose members are not readily identifiable by reference to objective criteria. Lastly, Surnaik argues that the circuit court failed to conduct a thorough analysis of the Rule 23 requirements. We find that Surnaik's issues are intertwined with the overriding issue primarily being the circuit court's failure to conduct a thorough analysis, under Rules 23(a) and 23(b) and, as such, we consider them together with a focus on the Rule 23(b)(3) class certification requirements. Upon consideration of these arguments, we agree with Surnaik that the circuit court failed to conduct a thorough analysis of the Rule 23 class certification requirements, conclude that the circuit court clearly erred, and find that Surnaik is entitled to relief in prohibition as moulded herein.
In the deposition of Mr. Snider's expert, Dr. Mike McCawley, the following exchange occurred:
Q. So the number that you are trying to reach is, as we kind of discussed before, what's the threshold at which someone could have inflammation?
A. Correct.
Q. Not the threshold at which a significant number of people would have—
A. Correct.
Q. —Inflammation?
A. Yeah, and that's the difference between the two.
Q. So with your number, it could be the case that only 10% of the people are exposed, for example?
A. Correct.
Q. Okay. Because you're setting that floor where it's possible to be harmed?
A. Yes.
This Court consistently has held that
[b]efore certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a) —numerosity, commonality, typicality, and adequacy of representation—and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party.
Syl. pt. 8, In re W. Va. Rezulin Litig. , 214 W. Va. 52, 585 S.E.2d 52 (emphasis added). See also Perrine v. E.I. du Pont de Nemours & Co. , 225 W. Va. 482, 525, 694 S.E.2d 815, 858 (2010) (" ‘To be maintainable as a class action, a suit must meet not only the prerequisites of Rule 23(a), but also the additional requirements of one of the subparts of Rule 23(b).’ Cleckley, Davis, & Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 23(b)[2], at 543."). Furthermore, " ‘[w]hether the requisites for a class action exist rests within the sound discretion of the trial court.’ Syllabus Point 5, Mitchem v. Melton , 167 W. Va. 21, 277 S.E.2d 895 (1981)." Syl. pt. 5, Rezulin , 214 W. Va. 52, 585 S.E.2d 52.
However, class certification determinations are not perfunctory. See Burdette v. FMC Corp. , 566 F. Supp. 808, 813 n.3 (S.D.W. Va. 1983) ("Certification is not a perfunctory act. Doctor v. Seaboard Coastline R. Co. , 540 F.2d 699 (4th Cir. 1976) ; Windham v. Am. Brands, Inc. , 565 F.2d 59, 64, n.6 (4th Cir. 1977), cert. denied , 435 U.S. 968, 98 S. Ct. 1605, 56 L. Ed. 2d 58 [(1978)] ; Shelton v. Pargo, Inc. , 582 F.2d 1298, 1312-1315 (4th Cir. 1978) ; Belcher v. Bassett Furniture , 588 F.2d 904, 906 (4th Cir. 1978)."). The party who proposes certification bears the burden of proving that certification is warranted. See Syl. pt. 4, Rezulin , 214 W. Va. 52, 585 S.E.2d 52. Moreover, the circuit court must give careful consideration to whether the party has met that burden. "A class action may only be certified if the trial court is satisfied, after a thorough analysis , that the prerequisites of Rule 23(a) of the West Virginia Rules of Civil Procedure have been satisfied. Further, the class certification order should be detailed and specific in showing the rule basis for the certification and the relevant facts supporting the legal conclusions." Syl. pt. 8, State ex rel. Chemtall Inc. v. Madden , 216 W. Va. 443, 607 S.E.2d 772 (2004) (emphasis added). Further "failure to conduct a thorough analysis ... amounts to clear error[,]" Chemtall , 216 W. Va. at 454, 607 S.E.2d at 783, and an abuse of discretion. See Brown v. Nucor Corp. , 785 F.3d 895, 902 (4th Cir. 2015) ("A district court abuses its discretion when it materially misapplies the requirements of Rule 23.").
At the outset, we find a general review of the status of how Rule 23(b)(3) ’s predominance requirement is treated in the federal courts to be beneficial to the Court's analysis in this matter. The federal courts have delineated what is actually necessary in order to satisfy this requirement. First, satisfying the predominance requirement is much more demanding than the general commonality requirement under Rule 23(a). See, e.g. , Comcast Corp. v. Behrend , 569 U.S. 27, 34, 133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515 (2013) ("If anything, Rule 23(b)(3) ’s predominance criterion is even more demanding than Rule 23(a). Amchem Products, Inc. v. Windsor , 521 U.S. 591, 623-624, 117 S. Ct. 2231, [2250,] 138 L. Ed. 2d 689 (1997)."); Lienhart v. Dryvit Sys., Inc. , 255 F.3d 138, 146 n.4 (4th Cir. 2001) ("In a class action brought under Rule 23(b)(3), the commonality requirement of Rule 23(a)(2) is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class predominate over other questions." (internal quotations and citations omitted)).
"Because the West Virginia Rules of Civil Procedure are practically identical to the Federal Rules, we give substantial weight to federal cases, especially those of the United States Supreme Court, in determining the meaning and scope of our rules. See generally Burns v. Cities Serv. Co. , 158 W. Va. 1059, 217 S.E.2d 56 (1975) ; Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York , 148 W. Va. 160, 133 S.E.2d 770 (1963)." Painter v. Peavy , 192 W. Va. 189, 192 n.6, 451 S.E.2d 755, 758 n.6 (1994).
Additionally, the federal courts have acknowledged that when undertaking an examination pursuant to the Rule 23(b)(3) predominance requirement, a rigorous analysis must occur. For example, the United States Court of Appeals for the Third Circuit has recognized that "the ‘predominance requirement imposes a more rigorous obligation upon a reviewing court to ensure that issues common to the class predominate over those affecting only individual class members.’ Sullivan v. DB Inv., Inc. , 667 F.3d 273, 297 (3d Cir. 2011)." Reinig v. RBS Citizens, N.A. , 912 F.3d 115, 127 (3d Cir. 2018) (emphasis added) (footnote omitted). See also Krakauer v. Dish Network, L.L.C. , 925 F.3d 643, 658 (4th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 676, 205 L. Ed. 2d 440 (2019) ("The predominance inquiry calls upon courts to give careful scrutiny to the relation between common and individual questions in the case." (internal quotations and citations omitted)); In re High-Tech Employee Antitrust Litig. , 985 F. Supp. 2d 1167, 1178-79 (N.D. Cal. 2013) ("A court's class-certification analysis must be rigorous and may entail some overlap with the merits of the plaintiff's underlying claim. This rigorous analysis applies to both Rule 23(a) and Rule 23(b)." (internal quotations and citations omitted)).
Additionally, we note that there is a "current trend towards heightening plaintiffs’ burden ... [which] has decidedly outpaced concern over providing a mechanism for litigating low-value claims." Ellen Meriwether, The Fiftieth Anniversary of the Rule 23 Amendments: Are Class Actions on the Precipice? , 30 Antitrust, 23, 24 (Spring 2016). This trend is demonstrated in a recent United States Supreme Court decision Comcast Corp. v. Behrend , 569 U.S. 27, 29, 133 S. Ct. 1426, 1429, 185 L. Ed. 2d 515 (2013). In Comcast , the Supreme Court addressed class certification and through the prism of Federal Rule of Civil Procedure 23(b)(3). The Supreme Court ultimately reversed certification on the ground that the plaintiff's expert proffered a damages model measuring aggregate class-wide damages under four theories of liability, where only one of the theories had been held by the district court to be provable with common evidence. See generally id. However,
[s]ince that decision, there has been considerable debate as to its import and breadth, with some maintaining that the ruling ‘breaks no new ground on the standard of certifying class actions’ while others urge that it requires a demonstration of ‘commonality of damages’ and a damages model that would allow individual damages to be established with common proof.
Meriwether , supra , at 24 (footnotes omitted).
Next, federal courts have further delineated what the lower court must actually consider in its examination in regard to the predominance requirement. The United States Supreme Court recently explained how evaluation of the predominance requirement works:
An individual question is one where members of a proposed class will need to present evidence that varies from member to member, while a common question is one where the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-wide proof. The predominance inquiry asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.
Tyson Foods, Inc. v. Bouaphakeo , ––– U.S. ––––, 136 S. Ct. 1036, 1045, 194 L. Ed. 2d 124 (2016) (alteration, citations, and internal quotation marks omitted).
Additionally, several of the United States Courts of Appeals also have formulated tests for how this requirement is met. For example, the United States Court of Appeals for the Second Circuit has explained that
[t]he "predominance" requirement of Rule 23(b)(3) "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 623, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997). The requirement is satisfied "if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." Moore v. PaineWebber, Inc. , 306 F.3d 1247, 1252 (2d Cir. 2002) ; see also Myers [v. Hertz Corp. ], 624 F.3d [537,] [ ] 547 [(2d Cir. 2010)].
A court examining predominance must assess (1) "the elements of the claims and defenses to be litigated," (2) "whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement to relief," and (3) "whether the common issues can profitably be tried on a class[-] wide basis, or whether they will be overwhelmed by individual issues." Johnson v. Nextel Commc'ns Inc. , 780 F.3d 128, 138 (2d Cir. 2015).
Scott v. Chipotle Mexican Grill, Inc. , 954 F.3d 502, 512 (2d Cir. 2020). Similarly, the United States Court of Appeals for the Fourth Circuit described the predominance inquiry as "focus[ing] not only on the existence of common questions, but also on how those questions relate to the controversy at the heart of the litigation." EQT Prod. Co. v. Adair , 764 F.3d 347, 366 (4th Cir. 2014). The Fourth Circuit additionally recognized that when undertaking the predominance analysis, "the [United States] Supreme Court has noted [that] ‘[c]onsidering whether questions of law or fact common to class members predominate begins ... with the elements of the underlying cause of action.’ Erica P. John Fund, Inc. v. Halliburton Co. , [563] U.S. [804,] [809], 131 S. Ct. 2179, 2184, 180 L. Ed. 2d 24 (2011) (internal quotation marks omitted)." Adair , 764 F.3d at 367 n.19.
Furthermore, the Court of Appeals for the Third Circuit has explained its predominance examination as follows:
Predominance tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation, a standard far more demanding than the commonality requirement of Rule 23(a), requiring more than a common claim[.] Issues common to the class must predominate over individual issues[.] Because the nature of the evidence that will suffice to resolve a question determines whether the question is common or individual, a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case[.] If proof of the essential elements of the cause of action
requires individual treatment, then class certification is unsuitable. Accordingly, we examine the elements of plaintiffs’ claim "through the prism" of Rule 23 to determine whether the District Court properly certified the class.
In re Hydrogen Peroxide Antitrust Litig. , 552 F.3d 305, 310-11 (3d Cir. 2008), as amended (Jan. 16, 2009) (internal quotations and citations omitted) (footnote omitted). See also Reinig , 912 F.3d at 127-28 ("At the class certification stage, the predominance requirement is met only if the district court is convinced that the essential elements of the claims brought by a putative class are ‘capable of proof at trial through evidence that is common to the class rather than individual to its members. In practice, this means that a district court must look first to the elements of the plaintiffs’ underlying claims and then, ‘through the prism’ of Rule 23, undertake a rigorous assessment of the available evidence and the method or methods by which the plaintiffs propose to use the evidence to prove those elements. If proof of the essential elements of the claim requires individual treatment, then class certification is unsuitable.").
Likewise, the United States Court of Appeals for the Fifth Circuit has stated that
Federal Rule of Civil Procedure 23(b)(3) requires the court to determine whether the questions of law or fact common to class members predominate over any questions affecting only individual members. This entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class, a process that ultimately prevents the class from degenerating into a series of individual trials. Absent this analysis, "it [is] impossible for the court to know whether the common issues would be a ‘significant’ portion of the individual trials ... much less whether the common issues predominate."
Seeligson v. Devon Energy Prod. Co., L.P. , 761 F. App'x 329, 338 (5th Cir. 2019) (quotations and citations omitted) (footnotes omitted).
One of the most succinct tests establishing what a court should examine when undertaking an analysis of the predominance requirement was set forth by the United States Court of Appeals for the Eleventh Circuit's decision in Brown v. Electrolux Home Products, Inc. , 817 F.3d 1225 (11th Cir. 2016). In Brown ,
the Eleventh Circuit provided a three-step approach for evaluating predominance: (1) identify the parties’ claims and defenses and their elements, (2) determine whether these issues are common questions or individual questions by analyzing how each party will prove them at trial, and (3) determine whether the common questions predominate. In addition, ... district courts should assess predominance with its overarching purpose in mind—namely, ensuring that a class action would achieve economies of time, effort, expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.
Ace Tree Surgery, Inc. v. Terex S. Dakota, Inc. , 332 F.R.D. 402, 408-09 (N.D. Ga. 2019) (internal quotations and citations omitted). Accordingly, it is clear that the federal courts have closely considered what is necessary under Rule 23(b)(3).
Turning now to West Virginia law, we examine class certification requirements—specifically, the Rule 23(b)(3) predominance requirement—as discussed in In re West Virginia Rezulin Litigation , 214 W. Va. 52, 585 S.E.2d 52 (2003). While the Rezulin Court created eleven new syllabus points regarding class actions, none of them specifically relate to what the circuit court is required to consider in the context of Rule 23(b)(3) ’s predominance and superiority requirements.
Rezulin did recognize that if a class is being certified pursuant to Rule 23(b)(3), then
a class action may be certified to proceed on behalf of a class [only] if the trial court finds "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and finds that a class action "is superior to other available methods
for the fair and efficient adjudication of the controversy."
Rezulin , 214 W. Va. at 71, 585 S.E.2d at 71. The Rezulin Court also observed that "[t]he predominance criterion in Rule 23(b)(3) is a corollary to the ‘commonality’ requirement found in Rule 23(a)(2). While the ‘commonality’ requirement simply requires a showing of common questions, the ‘predominance’ requirement requires a showing that the common questions of law or fact outweigh individual questions." Id. The Rezulin Court stated that "[a] conclusion on the issue of predominance requires an evaluation of the legal issues and the proof needed to establish them. As a matter of efficient judicial administration, the goal is to save time and money for the parties and the public and to promote consistent decisions for people with similar claims." Id. at 72, 585 S.E.2d at 72.
Moreover, the Rezulin Court explained that
[t]he predominance requirement is not a rigid test, but rather contemplates a review of many factors, the central question being whether "adjudication of the common issues in the particular suit has important and desirable advantages of judicial economy compared to all other issues, or when viewed by themselves." 2 Newberg on Class Actions , 4th Ed., § 4:25 at 174.
Id. The Rezulin Court concluded that
[t]he predominance requirement does not demand that common issues be dispositive, or even determinative; it is not a comparison of the amount of court time needed to adjudicate common issues versus individual issues; nor is it a scalebalancing test of the number of issues suitable for either common or individual treatment. 2 Newberg on Class Actions , 4th Ed., § 4:25 at 169-173. Rather, "[a] single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions." Id. at 172. The presence of individual issues may pose management problems for the circuit court, but courts have a variety of procedural options under Rule 23(c) and (d) to reduce the burden of resolving individual damage issues, including bifurcated trials, use of subclasses or masters, pilot or test cases with selected class members, or even class decertification after liability is determined. As the leading treatise in this area states, "[c]hallenges based on ... causation, or reliance have usually been rejected and will not bar predominance satisfaction because those issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant's liability." 2 Newberg on Class Actions , 4th Ed., § 4.26 at 241. "That class members may eventually have to make an individual showing of damages does not preclude class certification." Smith v. Behr Process Corp. , 113 Wash. App. 306, 323, 54 P.3d 665, 675 (2002) (citations omitted).
Id.
The United States Supreme Court has observed West Virginia's noticeable departure from looking to federal law for guidance when analyzing what is required under the Rule 23(b)(3) predominance requirement.
[T]he West Virginia Supreme Court has gone some way toward resolving the matter before us by declaring its independence from federal courts’ interpretation of the Federal Rules—and particularly of Rule 23. In In re W. Va. Rezulin Litigation , 214 W. Va. 52, 585 S.E.2d 52 (2003) ( In re Rezulin ) , the West Virginia high court considered a plaintiff's motion to certify a class[.] ... The court made a point of complaining about the parties’ and lower court's near-exclusive reliance on federal cases about Federal Rule 23 to decide the certification question. Such cases, the court cautioned, " ‘may be persuasive, but [they are] not binding or controlling.’ " Id., at 61, 585 S.E.2d at 61. And lest anyone mistake the import of this message, the court went on: The aim of "this rule is to avoid having our legal analysis of our Rules ‘amount to nothing more than Pavlovian responses to federal decisional law.’ " Ibid. (emphasis deleted)....
... [T]he West Virginia Supreme Court in In re Rezulin adopted an all-things-considered, balancing inquiry in interpreting its Rule 23. Rejecting any "rigid test," the state court opined that the predominance requirement "contemplates a review of many factors."
214 W. Va. at 72, 585 S.E.2d at 72. Indeed, the court noted, a " ‘single common issue’ " in a case could outweigh " ‘numerous ... individual questions.’ " Ibid. That meant, the court further explained (quoting what it termed the "leading treatise" on the subject), that even objections to certification " ‘based on ... causation, or reliance’ "—which typically involve showings of individual injury—" ‘will not bar predominance satisfaction.’ " Ibid. (quoting 2 A. Conte & H. Newberg, Newberg on Class Actions § 4.26, p. 241 (4th ed. 2002)).
Smith v. Bayer Corp. , 564 U.S. 299, 310-12, 131 S. Ct. 2368, 2377-78, 180 L. Ed. 2d 341 (2011). As such, in rejecting any reliance on or guidance from the federal courts’ views and tests regarding how our state courts are to examine the Rule 23(b)(3) requirements, we have instead utilized a vague, all things considered test that does not give the circuit courts any real guidance. While we may not be bound to follow the federal courts’ interpretation of its Rule 23(b)(3), we nevertheless find the weight of the federal jurisprudence to be persuasive. Accordingly, we conclude that to the extent Rezulin simply suggests that there is not much difference between commonality and predominance and that no rigid test is necessary, it must now be modified.
Recently, this Court adopted and applied federal law in the context of the Rule 23(a) commonality determination and other aspects of class action matters in State ex rel. West Virginia University Hospitals, Inc. v. Gaujot , 242 W. Va. 54, 62, 829 S.E.2d 54, 62 (2019).
Given the aforementioned authorities, we now hold that when a class action certification is being sought pursuant to West Virginia Rule of Civil Procedure 23(b)(3), a class action may be certified only if the circuit court is satisfied, after a thorough analysis, that the predominance and superiority prerequisites of Rule 23(b)(3) have been satisfied. The thorough analysis of the predominance requirement of West Virginia Rule of Civil Procedure 23(b)(3) includes (1) identifying the parties’ claims and defenses and their respective elements; (2) determining whether these issues are common questions or individual questions by analyzing how each party will prove them at trial; and (3) determining whether the common questions predominate. In addition, circuit courts should assess predominance with its overarching purpose in mind—namely, ensuring that a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. This analysis must be placed in the written record of the case by including it in the circuit court's order regarding class certification.
In the case sub judice , Surnaik claims both that the circuit court erred in its analysis of the Rule 23(b)(3) predominance requirement and that its order "is deficient because it did not conduct a ‘thorough analysis’ explaining how [Mr. Snider] satisfied the requirements of Rule 23 [.]" After carefully examining the circuit court's order we agree that it is woefully inadequate.
While it appears that the focus of Surnaik's argument is in regards to the failure to adequately analyze the typicality and ascertainability requirements, Surnaik nonetheless asserted that the circuit court's order is inadequate in all respects of the Rule 23 thorough analysis requirement.
Most significantly, the circuit's court's order fails to conduct a thorough analysis of the Rule 23(b)(3) predominance requirement. Surnaik repeatedly has challenged the predominance requirement in this matter by asserting that the proposed class is inappropriately composed of a significant number of uninjured individuals—approximately 90% of the class members. Surnaik alleges that because of the large amount of uninjured class members, "individualized issues of injury and causation will overwhelm questions common to the class." Additionally, Surnaik contends that this type of mass accident matter is not appropriate for class action because "variations in exposure, and differences in the amount of exposure and the nexus between exposure and injury lead to different applications of legal rules, including matters of causation, damages, and affirmative defenses, such as comparative fault and assumption of risk, which are applicable to each [individual] plaintiff."
While the circuit court's order did have slightly more analysis regarding predominance than the other Rule 23 requirements, it failed to (1) thoroughly identify the parties’ claims and defenses and their respective elements; (2) determine whether these issues are common questions or individual questions by analyzing how each party will prove them at trial; and (3) determine whether the common questions predominate. Specifically, the order contained the following predominance analysis:
Plaintiff[ ] commonly assert[s] that the Defendant was negligent and recklessly indifferent to the well-being of its neighbors in failing to maintain its fire protection system, and that an award of compensatory and punitive damages to residents, businesses, and government agencies in the area impacted by noxious and harmful levels of smoke from the Warehouse Fire is therefore appropriate. The Court finds that the overarching liability issues predominate over any individual questions, favoring class treatment consistent with W. Va. R. Civ. P. 23(b)(3).
The circuit court's analysis does not come close to rising to the level that is required. There was very limited, to say the least, discussion of the actual claims and causes of action in this matter. Mr. Snider asserts various causes of action including negligence, reckless indifference, nuisance, and trespass. Along with each of these various causes of action are alleged damages ranging from different types of property damage, personal injuries, and lost business profits. As stated above, the circuit court's only discussion in the "Findings of Fact" section of its order states "Plaintiff[ ] commonly assert[s] that the Defendant was negligent and recklessly indifferent to the well-being of its neighbors in failing to maintain its fire protection system." As such, the circuit court's order identifies only the negligence and reckless, willful, and wanton indifference causes of action. There is absolutely no identification of the nuisance or trespass causes of action also brought by Mr. Snider. The circuit court's order also fails to discuss any of the required essential elements of each of the causes of action, including negligence or reckless indifference. There is no discussion of whether the essential elements of each cause of action are capable of individualized or even generalized proof. Finally, the order summarily concludes that the overarching liability issues predominate over any individual questions without any legal or factual analysis as to why this is so. Although the circuit court's order does contain a bit more analysis in the "Conclusions of Law" section by intertwining the predominance and superiority requirements together, this discussion does not cure the defects of its initial analysis. Specifically, the order cites to a list of cases to support its finding that a mass accident case is appropriate for class action treatment. The circuit court, itself, notes that those cases typically involve "non-personal injury" matters. Then, the circuit court cites to a case in support of its conclusion that Mr. Snider's case is appropriate for class certification; however, it goes on to state that the case it is relying on "certified two of three proposed subclasses—the ones ‘involving damages to class members’ property’—and only denied certification for the subclass ‘involving personal injuries.’ " Essentially, the circuit court's citation to cases without any analysis as to why they specifically apply to the facts of the present matter "does little more than prove that it is theoretically possible to satisfy the predominance and superiority requirements of Rule 23(b)(3) in a mass tort or mass accident class action[.]" Steering Comm. v. Exxon Mobil Corp. , 461 F.3d 598, 603 (5th Cir. 2006). It then summarily disposed of Surnaik's argument that 90% of the class is uninjured by finding that "owning or residing in a house that is invaded by noxious or harmful levels of smoke negligently released from a fire is a cognizable injury." The circuit court once again failed to examine any of the essential elements of the causes of action and failed to discuss whether those elements are capable of individualized or even generalized proof. The circuit court's sole focus was on property damages, and it neglected to take into account any potential issues with the personal injury claims. Accordingly, the circuit court failed to thoroughly and appropriately determine whether the common issues predominate over individualized issues as required by Rule 23(b)(3).
See EQT Prod. Co. v. Adair , 764 F.3d 347, 367 n.19 (4th Cir. 2014) ("The district court also failed to consider whether the different elements of the diverse causes of action the plaintiffs assert may affect the Rule 23(b)(3) analysis. ... Here, the plaintiffs assert a diverse array of claims, yet the court failed to consider whether any of the unique elements of those claims would affect the predominance analysis. This error is clearest with respect to the district court's decision to certify the breach of contract claims in [the cases of] Kiser and Adkins [a part of this consolidated appeal], which it did without explanation and notwithstanding the magistrate's recommendation to the contrary. And neither the magistrate nor the district court addressed the breach of contract claims in Addison [case of this consolidated appeal]. On remand, the district court should rigorously analyze each of the plaintiffs’ claims to determine whether any of the distinct elements of those actions might affect the predominance of common questions.").
We additionally note that the proposed class consists of residents of both West Virginia and Ohio. The federal courts have found this information to be especially important in their predominance analysis. See Castano v. Am. Tobacco Co. , 84 F.3d 734, 741 (5th Cir. 1996) ("In a multi-state class action, variations in state law may swamp any common issues and defeat predominance. See Georgine v. Amchem Prods. , 83 F.3d 610, 618 (3d Cir. 1996) (decertifying class because legal and factual differences in the plaintiffs’ claims ‘when exponentially magnified by choice of law considerations, eclipse any common issues in this case’); In re American Medical Sys., Inc., 75 F.3d 1069, 1085 (6th Cir. 1996) (granting mandamus in a multi-state products liability action, in part because ‘[t]he district court ... failed to consider how the law of negligence differs from jurisdiction to jurisdiction[.]"). Accordingly, a [ ] court must consider how variations in state law affect predominance and superiority. Walsh v. Ford Motor Co. , 807 F.2d 1000 (D.C. Cir. 1986) (Ruth Bader Ginsburg, J.), cert. denied , 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 677 (1987)."). In the present matter, the circuit court made no mention of this fact and likewise no analysis as to this issue when considering the predominance and superiority class certification requirements.
Furthermore, Rule 23(b)(3) also requires a showing "that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." As we previously have explained,
[u]nder the superiority test, a trial court must "compare [ ] the class action with other potential methods of litigation." Cleckley, Davis, & Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 23(b)(3)[2][b], at 554 (footnote omitted). See also Nolan v. Reliant Equity Investors, LLC , No. 3:08-CV-62, 2009 WL 2461008, at *4 (N.D. W. Va. Aug. 10, 2009) ("Superiority requires that a class action be superior to other methods for the fair and efficient adjudication of the controversy." (quotations and citations omitted)); In re West Virginia Rezulin Litig. , 214 W. Va. at 75, 585 S.E.2d at 75 (stating that superiority "requirement focuses upon a comparison of available alternatives").
"Factors that have proven relevant in the superiority determination include the size of the class, anticipated recovery, fairness, efficiency, complexity of the issues and social concerns involved in the case." Cleckley, Davis, & Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 23(b)(3)[2][b], at 554 (footnote omitted). In addition, this Court has observed that consideration must be given to the purposes of Rule 23, " ‘including: conserving time, effort and expense; providing a forum for small claimants; and deterring illegal activities.’ " In re West Virginia Rezulin Litig. , 214 W. Va. at 76, 585 S.E.2d at 76 (quoting 2 Conte & Newberg, Newberg on Class Actions § 4:32, at 277-78 ).
Perrine , 225 W. Va. at 527, 694 S.E.2d at 860. In the instant matter, the circuit court's main analysis of the Rule 23(b)(3) superiority requirement is as follows:
The class action mechanism is ideally suited for resolving these matters. Class certification promotes efficiency and uniformity of judgment, among other reasons, because the many Class Members will not be forced to separately pursue claims arising from the same incident, which might lead to inconsistent verdicts. The Court specifically finds that the class action mechanism is superior to any available mechanisms for aggregating many individual claims, including before the West Virginia Mass Litigation Panel, because the damages suffered by most class members are too small to warrant the associated costs of pursuing
such cases, such as basic filing fees, deposition fees, attorney time in processing, and expert witness fees.
As discussed herein, in the "Conclusions of Law" section of the circuit court's order, the court did provide slightly more discussion that was intertwined with predominance. However, as noted above, this discussion was conclusory in that it listed cases where class certification was found to be appropriate in mass accident cases without giving any explanation as to why those particular cases fit the facts of this matter. There is no substantive analysis as to the other factors that this Court has stated should be considered. As such, we find that the circuit court failed to make a thorough analysis of the superiority requirement of Rule 23(b)(3) as well.
We further note that the circuit court's order regarding other Rule 23(a) requirements is also insufficient. For example, the order is woefully inadequate regarding the Rule 23 adequacy of representation requirement, despite the fact that Surnaik contested the credibility of the class representative below due to certain alleged racist and political remarks he made on social media. See Rule 23. Class Actions, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 23 ("Rule 23(a)(4) also considers whether the proposed representative has the interest and the ability to adequately prosecute the action.... Courts may also consider whether the proposed class representative is disqualified because of issues regarding the person's credibility or trustworthiness." (footnotes omitted)).
Furthermore, as noted in the foregoing discussion, a circuit court's failure to engage in the requisite thorough analysis of the Rule 23(a) requirements and to make detailed and specific findings to support the court's certification determination constitutes clear error. Accord State ex rel. Mun. Water Works v. Swope , 242 W. Va. 258, 268, 835 S.E.2d 122, 132 (2019) ; State ex rel. W. Va. Univ. Hosps., Inc. v. Gaujot , 242 W. Va. 54, 62, 829 S.E.2d 54, 62 (2019) ; Chemtall , 216 W. Va. at 454, 607 S.E.2d at 783. Such failure "is also an abuse of discretion. The circuit court must approach certification decisions in a conscientious, careful, and methodical fashion." W. Va. Univ. Hosps. , 242 W. Va. at 62, 829 S.E.2d at 62 (internal quotations and citations omitted). We find that the same standard should logically extend to a court's failure to conduct a thorough analysis pursuant to Rule 23(b). Accordingly, we hold a circuit court's failure to conduct a thorough analysis of the requirements for class certification pursuant to West Virginia Rules of Civil Procedure 23(a) and/or 23(b) amounts to clear error. Because the circuit court failed to conduct a thorough analysis of the class certification requirements under both Rules 23(a) and 23(b), we find the court's ruling certifying the class to be clearly erroneous. Therefore, we grant as moulded the requested writ of prohibition and vacate the circuit court's class certification order.
Because we grant the writ as moulded and vacate the circuit court's order, we need not consider any other grounds raised by Surnaik.
IV.
CONCLUSION
For the foregoing reasons, we conclude that the circuit court has exceeded its legitimate powers by certifying the class while failing to undertake a thorough analysis in its determination of whether the class certification requirements of Rule 23 of the West Virginia Rules of Civil Procedure were satisfied. Accordingly, Surnaik's writ of prohibition is granted as moulded, and the circuit court's order granting class certification is vacated.
Writ granted as moulded.
JUSTICE HUTCHISON concurs and reserves the right to file a concurring opinion.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
Workman, Justice, dissenting:
For seventeen years, West Virginia's trial courts have been guided by this Court's seminal decision in In re West Virginia Rezulin Litigation , 214 W. Va. 52, 585 S.E.2d 52 (2003), and its progeny, in deciding class certification issues arising under Rule 23 of the West Virginia Rules of Civil Procedure. And for seventeen years, the Rezulin analysis has guided our courts to fair, just, and equitable results in determining which cases are suitable for certification and which are not. Today, however, the Court announces that Rezulin "utilized a vague, all things considered test that does not give the circuit courts any real guidance," and determines, in a lengthy advisory opinion, that henceforth we will be guided by "the federal courts’ interpretation of its Rule 23(b)(3)." Then, in its rush to fix something that isn't broken, combined with its zeal to subordinate established West Virginia law to federal law, the majority has erected a bureaucratic mountain of fact-finding and legal analysis which a circuit court must climb prior to certifying a class, all for the benefit of corporate defendants, while completely ignoring the other side of the equation, that "[t]he class action device allows plaintiffs with individually small claims the opportunity for relief that would otherwise not be economically feasible, allowing them to collectively share the otherwise exorbitant costs of bringing and maintaining the lawsuit." Salem Int'l Univ., LLC v. Bates , 238 W. Va. 229, 237, 793 S.E.2d 879, 887 (2016) (Workman, J., concurring).
See text infra.
For instance, the majority opinion picks and chooses various federal cases as part of its "general review" of Rule 23(b)(3) ’s predominance requirement, ostensibly because our rule is "practically identical to the Federal Rules[.]" ––– W.Va. ––––, –––– n. 8, 852 S.E.2d 748, 757 n. 8. This approach is problematic because even a cursory review of West Virginia's version of Rule 23 and the federal version of Rule 23 shows they are, in many ways, markedly different. West Virginia adopted its version of the rule in 1998, with a slight tweak in 2017; the federal rule was modified in 2003, 2007, 2009, and 2018 (see 7A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, Civil § 1753.1 (3rd Ed. 2020)). Plus, class actions in federal court are further confounded by the 2005 Class Action Fairness Act (PL 109-2, 119 Stat. 4), and now "codified in scattered sections of Title 28, United States Code." Estate of Pew v. Cardarelli , 527 F.3d 25, 26 (2d Cir. 2008). That is why this Court has often said that "[a] federal case interpreting a federal counterpart to a West Virginia rule of procedure may be persuasive, but it is not binding or controlling." Syl. pt. 3, Brooks v. Isinghood , 213 W. Va. 675, 584 S.E.2d 531 (2003).
I.
I begin with the actual holding of this case: that "the circuit court has exceeded its legitimate powers by certifying the class while failing to undertake a thorough analysis in its determination of whether the class certification requirements of Rule 23 ... were satisfied." I have no quarrel with the proposition that "[b]efore certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a) – numerosity, commonality, typicality, and adequacy of representation – and has satisfied one of the three subdivisions of Rule 23(b)." Syl. Pt. 8, in part, Rezulin, 214 W. Va. at 56, 585 S.E.2d at 56. Additionally, I agree that in making this determination, the court is required to undertake a "thorough analysis," and that its failure to do so "amounts to clear error." State ex rel. Chemtall Inc. v. Madden , 216 W. Va. 443, 454, 607 S.E.2d 772, 783 (2004). I part company with the majority, however, in its conclusion that the experienced circuit court judge handling this litigation did not undertake a thorough analysis of the evidence and the governing law in crafting his decision. The court's certification order – 14 pages of findings of fact, conclusions of law, and a trial plan, plus 3 pages of appended material delineating the geographical area of the class – demonstrates that the court had a comprehensive understanding of the evidence and how it fit within the framework of a Rule 23 analysis. The only fault I can find in the order – and it is a fault, not a fatal flaw -- is that the court did not organize all of its findings and conclusions under specific headings: numerosity, commonality, typicality, adequate representation, predominance, and superiority of the class action mechanism. Rather, it made succinct, but not merely conclusory, findings under those headings, and then discussed the application of law to the facts at length in the portion of its order styled "Conclusions of Law."
The majority does find the organization of the circuit court's analysis to be a fatal flaw, concluding that "[a]lthough the circuit court's order does contain a bit more analysis in the ‘Conclusions of Law’ section by intertwining the predominance and superiority requirements together, this discussion does not cure the defects of its initial analysis." This bit of analysis to which the majority sarcastically refers is 6 pages of findings and conclusions, supported by citations of numerous legal authorities.
Along with Charles Alan Wright, Professor Miller would go on to co-author Federal Practice and Procedure , the seminal treatise in the field of civil procedure. As part of his work in the field of civil procedure, he has represented litigants before this Court. See State ex rel. CSR Ltd. v. MacQueen , 190 W. Va. 695, 441 S.E.2d 658 (1994).
Based upon the record before this Court, and on the factual findings and legal conclusions set forth in the circuit court's order, it is difficult to envision a case better suited for resolution pursuant to the mechanism set forth in Rule 23 of the West Virginia Rules of Civil Procedure. Respondent's complaint alleges that in the early morning hours of October 21, 2017, a warehouse in the 3800 block of Camden Avenue in Parkersburg, West Virginia, caught fire, and thereafter burned until October 29, 2017. The complaint further alleges that during this 8-day period of time, smoke and particulate matter from the fire and smoldering ruins constituted a nuisance and health hazard to residents and workers (in both private businesses and government offices) within an 8.5 mile radius of the warehouse. In the complaint and also in his deposition testimony, Respondent also alleges that he and all other residents and workers suffered property damage in the form of smoke and particulates from the fire invading homes "at levels that interfered with the comfort, use, and enjoyment of their property," together with inchoate damages such as annoyance and inconvenience; and further that he and at least some other residents and workers suffered personal injuries as well. In summary, in this case we have a large number of plaintiffs (estimated to be 57,000), experiencing harm in different degrees, arising from a single event which took place in a defined location over a short period of time.
In this regard, the circuit court wrote that that "[b]ecause any questions relate solely to the issues of damages, at the very least, the proposed class action should be certified on the issues of liability and causation under Rule 23(c)(4)." (Emphasis added.) Thus, all of Petitioner's complaints that 90% of the class suffering no damages at all – a highly misleading statement which reflects Petitioner's apparent belief that the only damages recoverable in this action would be for bodily injury and/or noticeable alterations to property – are, if not a complete red herring, certainly not a death blow to the maintenance of a class action. " ‘That class members may eventually have to make an individual showing of damages does not preclude class certification.’ " Rezulin , 214 W. Va. at 72, 585 S.E.2d at 72 (citing Smith v. Behr Process Corp., 113 Wash.App. 306, 54 P.3d 665, 675 (2002) ). Further, "[a] circuit court's consideration of a motion for class certification should not become a mini-trial on the merits of the parties’ contentions[,]" Rezulin , 214 W. Va. at 63, 585 S.E.2d at 63, which is exactly what Petitioner seeks and what the majority has gifted it.
Rule 23(b)(3) goes on to provide four other "silly putty" guidelines for the trial court's findings of fact on predominance and superiority:
The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Professor Miller notes that these "Four Horsemen of the Apocalypse" are filled with "soft words" that give texture to the concepts of predominance and superiority:
MILLER: ... So those four things have to be written in. That encumbered the text of (b)(3) and other parts of the Rule in and of itself, and then there was a feeling that in using predominance and superiority, you have to give that some texture. And that's where the Four Horsemen of the Apocalypse are laid out in the Rule as factors to be considered by the court. The most significant in retrospect has been "manageability." Even "manageability" is a soft word that means whatever a judge might want it to mean.
[Questioner]: But it's a concept which we take for granted, particularly after the ‘83 reforms of the federal rules, for which you were then the Reporter to the Advisory Committee. But the word comes out of nowhere at the time ...
MILLER: That was the brilliance [of the Committee] being able to find words to meet the situation, without overcrystallizing. It's no different than the decision made by the original Rules Committee not to use words like "fact," "conclusion," or "cause of action." They canonically banned those words because they had too much baggage on them. The 1960's Committee, in doing the (b)(3) thing, was grasping for words that didn't have baggage.
74 N.Y.U. Ann. Surv. Am. L. at 117.
In support of his motion for class certification, Respondent submitted expert testimony from three individuals whose credentials are not disputed. The first expert delineated the geographical boundary of the area allegedly impacted by the emission of smoke and particulate matter; specifically, the class area was defined as the area within which individual would have had exposure within a 24-hour average of at least 3 micrograms per cubic meter of fine particles less than 2.5 microns in size. The second expert did disbursement modeling to draw the isopleths within which individuals would have had exposure at this 3 micrograms per cubic meter level. Finally, the third expert, a physician, gave evidence tending to show that this level of exposure to particulate matter increased the risk of various health problems ranging in severity from discomfort to death.
An isopleth is defined as a line on a map connecting points having equal incidence of a specified meteorological feature.
Ultimately, the circuit court certified a class consisting of all residents and businesses within an 8.5 mile radius of Petitioner's warehouse. The court concluded that there were
many common questions of law and fact, including to name only a few of the most important: questions concerning industry standards for fire protection systems; questions relating to what was stored in the warehouse; how the decision not to maintain the fire protection system [was] made; who made it; which of those chemicals burned; what the decomposition products of the waste chemicals was; the area of dispersion of smoke and particulate matter; and the potential for harm from contact, inhalation, or ingestion of the smoke and particulate matter.
The court also concluded that "[b]ecause any individual questions relate solely to the issues of damages, at the very least, the proposed class action should be certified on the issues of liability and causation under Rule 23(c)(4)."
Reviewing the circuit court's common questions of law and fact, it is hard to fathom the majority's dismissive conclusion that the court's order is "woefully inadequate" to demonstrate that those common questions predominate. In a recent case, we affirmed the guidance set forth in Rezulin that "[i]n deciding predominance, the ‘central question [is] whether "adjudication of the common issues in the particular suit has important and desirable advantages of judicial economy compared to all other issues, or when viewed by themselves." 2 Newberg on Class Actions , 4th Ed. , § 4.25 at 174.’ " State ex rel. U-Haul Co. of W. Va. v. Tabit , No. 17-1052, 2018 WL 2304282, at *8 (W. Va. May 21, 2018) (memorandum decision) (citing Rezulin , 214 W. Va. at 72, 585 S.E.2d at 72 ). We went on to explain that,
[t]he predominance requirement does not demand that common issues be dispositive, or even determinative; it is not a comparison of the amount of court time needed to adjudicate common issues versus individual issues; nor is it a scale-balancing test of the number of issues suitable for either common or individual treatment. 2 Newberg on Class Actions, 4th Ed. , § 4.25 at 169-173. Rather, ‘[a] single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions.’ Id. at 172.
U-Haul., 2018 WL 2304282, at *9 (citation omitted). In the instant case, can there be any serious question that the predominant issues are those enumerated by the circuit court? And as a corollary proposition, can there be any serious question that thereafter, the court has a "variety of procedural options under Rule 23(c) and (d), to reduce the burden of resolving individual damage issues, including bifurcated trials, use of subclasses or masters, pilot or test cases with selected class members, or even class decertification after liability is determined[ ]"? U-Haul., 2018 WL 2304282, at *9.
See supra note 3.
Even more difficult to fathom is the majority's conclusion that the circuit court's finding with respect to superiority, Rule 23(b)(3), is "conclusory in that it listed cases where class certification was found to be appropriate in mass accident cases without giving any explanation as to why those particular cases fit the facts of this matter." Again, the majority is parsing the court's order paragraph by paragraph, without considering its findings and conclusions as an integrated whole. With respect to superiority, the court stressed the fact that "the damages suffered by most class members are too small to warrant the associated costs of pursuing such cases, such as basic filing fees, deposition fees, attorney time in processing, and expert witness fees." And again, inasmuch as the court certified a class only as to liability and causation – essentially, was Petitioner negligent or reckless, and did that negligence or recklessness cause the warehouse fire which belched smoke and particulates for 8 days over an 8.5 mile radius – I am hard pressed to come up with any rationale which could possibly support the conclusion that a better way to handle the matter would be to require anyone claiming to have suffered injury and damage to file an individual lawsuit. Even accepting Petitioner's claim that only 10% of those within the 8.5 mile radius suffered actual harm, the result would be 5,700 individual lawsuits – enough to force the judicial system to its knees, notwithstanding the $1,140,000.00 in filing fees that would be generated.
The majority follows Petitioner down this particular rabbit hole, criticizing the circuit court's finding that "owning or residing in a house that is invaded by noxious or harmful levels of smoke negligently released from a fire is a cognizable injury [to all class members]," by setting up a straw man argument as to whether the essential elements of the various causes of action alleged in the complaint "are capable of individualized or even generalized proof." This is a merits question more properly addressed on motion for summary judgment; a certification inquiry under Rule 23 does not require plaintiff to prove his or her case, only to establish that the issues fall within the framework established in subsections (a) and (b) of the rule.
In summary, the majority's decision in this case exalts form over substance, and requires that a circuit court's order granting class certification must contain far more than the "detailed and specific showing" previously deemed sufficient. E.g., State ex rel. Municipal Water Works v. Swope , 242 W. Va. 258, 267-68, 835 S.E.2d 122, 131-32 (2019). Rather, the order will have to contain a level of claim-by-claim, issue-by-issue, defense-by-defense analysis somewhere between a blue book essay and a law review article in length. Here, where the class parameters have been so well defined by the testimony of expert witnesses, and the analysis of the circuit court is so clear and so evidently correct, one can only read the majority opinion as a result-driven attempt to steer the circuit court, on remand, in Getting to No.
II.
Having expressed my disagreement with the majority's holding, I now turn to the lengthy advisory opinion which precedes the relatively brief discussion of the actual issue in this case. Petitioner raised five issues in its brief: that common issues do not predominate in this case because only 10% of the class is likely to have been injured; that mass accident and toxic tort cases are inappropriate for class adjudication; that plaintiff cannot satisfy the certification requirements of standing and typicality because he concedes that he has not suffered any property damage; that the class members are not readily identifiable by reference to objective criteria; and that the circuit court failed to conduct a thorough analysis of the Rule 23 factors. In this latter regard, Petitioner's entire argument was that the court's analysis of typicality and ascertainability was insufficient, not its analysis of predominance. Although I believe that the first four of these issues are without merit, based on my review of the evidence contained in the appendix record, this is of no moment; the fact is that these issues all became moot when the majority decided the case on the ground that the circuit court's order was insufficient to demonstrate the "thorough analysis" required by our case law, and specifically with respect to the circuit court's findings of predominance and superiority.
More than half of the majority's "Discussion" could be classified either as (a) dicta, (b) an advisory opinion, or (c) the use of a backhoe to dig a one inch hole. This Court has defined dicta as language "which, by definition, is ... unnecessary to the decision in the case and therefore not precedential. Black's Law Dictionary 1100 (7th ed. 1999)." State ex rel. Med. Assurance of W. Va., Inc. v. Recht , 213 W. Va. 457, 471, 583 S.E.2d 80, 94 (2003). With respect to advisory opinions, we have held that "the requirement of a justiciable controversy and the prohibition against advisory opinions are two sides of the same coin. We explained this in Syllabus Point 2 of Harshbarger v. Gainer [184 W. Va. 656, 659, 403 S.E.2d 399, 402 (1991) ] when we held that ‘[c]ourts are not constituted for the purpose of making advisory decrees or resolving academic disputes. The pleadings and evidence must present a claim of legal right asserted by one party and denied by the other[.]’ " State ex rel. Perdue v. McCuskey , 242 W. Va. 474, 478, 836 S.E.2d 441, 445 (2019). I have chosen to refer to the scholarly exposition in this case as an advisory opinion, since the majority is quite clearly attempting to advise the circuit court with respect to how it should resolve an issue that has not actually been raised by anyone other than the majority: the sufficiency of the circuit court's order with respect to the question of predominance. See text infra.
Interestingly, this word is not found in either the text of Rule 23 or in any of this Court's class action cases. Rather, it is a formulation discussed in some federal cases, describing the unremarkable concept that a class and its members must be readily identifiable with reference to objective criteria, "without extensive and individualized fact-finding or ‘mini-trials[.]’ " Marcus v. BMW of N. Am., LLC , 687 F.3d 583, 592-93 (3rd Cir. 2012) (citation omitted). In the instant case, the testimony of Respondent's experts most certainly met any requirement of ascertainability. See text supra.
In this regard, the majority could have cited the comprehensive discussion of predominance set forth in Rezulin and its progeny, and rested its decision thereon.
‘A conclusion on the issue of predominance requires an evaluation of the legal issues and the proof needed to establish them. As a matter of efficient judicial administration, the goal is to save time and money for the parties and the pubic and to promise consistent decisions for people with similar claims.’ In the Matter of Cadillac V8-6-4 Class Action , 93 N.J. 412, 430, 461 S.E.2d 736, 745 (1983). The predominance requirement is not a rigid test, but rather contemplates a review of many factors, the central question being whether ‘adjudication of the common issues in the particular suit has important and desirable advantages of judicial economy compared to all other issues, or when viewed by themselves.’ 2 Newberg on Class Actions, 4th Ed. , § 4:25 at 174.
Rezulin , 214 W. Va. at 72, 585 S.E.2d at 72 ; see also U-Haul , 2018 WL 2304282, at *8 ("In deciding predominance, the ‘central question [is] whether ‘adjudication of the common issues in the particular suit has important and desirable advantages of judicial economy compared to all other issues, or when viewed by themselves.’ ") (citation omitted).
Undaunted by the fact that Petitioner did not argue insufficiency of the circuit court's analysis of predominance (it simply claimed that the court's decision was erroneous because the existence or extent of individual damages would vary), or the fact that the issue of the sufficiency of the court's analysis could easily be resolved under existing West Virginia law, the majority devotes pages of text to what is termed a "general review" of federal cases dealing with predominance. The majority notes with approval those cases that require the lower court to perform a "rigorous analysis," or even a "more rigorous analysis" of class certification motions, as opposed to this Court's "thorough analysis" standard. (Emphasis added.) The majority further acknowledges the current trend in federal courts "toward heightening plaintiffs’ burden ... [which] has decidedly outpaced concern over providing a mechanism for litigating low-value claims." There is no apparent reason given for the majority's clear preference for the anti-plaintiff position espoused by the federal courts cited in its opinion; and whatever the reason, it seems clear that the Court is signaling a retreat from what the United States Supreme Court once termed West Virginia's "declar[ation of] independence from federal courts’ interpretation of the Federal Rules – and particularly of Rule 23." Smith v. Bayer Corp. , 564 U.S. 299, 310, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011).
In his concurring opinion in State ex rel. Chemtall Inc. v. Madden , 216 W. Va. 443, 458, 607 S.E.2d 772, 787 (2004), then-Justice Starcher commented on the federal courts’ seeming hostility toward class action lawsuits:
In the instant case, the defendants argued that a ‘class action ... may only be certified if the trial court is satisfied, after a rigorous analysis , that the prerequisites of Rule 23(a) have been satisfied.’ General Telephone Co. of Southwest v. Falcon , 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982) (emphasis added). As the majority opinion suggests, most federal courts have blithely accepted this argument and require a party seeking class action certification to endure a ‘rigorous’ analysis of their class certification evidence by the trial court.
After carefully reading Rule 23 of our Rules of Civil Procedure , and reading the Rules as a whole, neither I nor my colleagues can find anything that requires a party to submit any motion to a ‘rigorous’ analysis by the trial court. Use of the term ‘rigorous’ suggests that a trial judge must exercise ‘harshness, rigidity, inflexibility,’ or be ‘severely exact or accurate; ... stern ... hard, inflexible, stiff, unyielding.’ Frankly, it is difficult to determine how a litigant could achieve a ‘just, speedy and inexpensive’ resolution of a dispute when the trial judge, usually at the initial, pre-trial stages of the case, is being harsh, inflexible, exacting and unyielding in considering the parties’ motions.
Chemtall , 216 W. Va. at 458, 607 S.E.2d at 787 (footnote omitted).
Ellen Meriwether, The Fiftieth Anniversary of the Rule 23 Amendments: Are Class Actions on the Precipice? , 30 Antitrust, 23, 24 (Spring 2016).
I acknowledge that federal law is "the supreme law of the land," West Virginia Constitution, article I, section 1, in all matters involving the interpretation of the United States Constitution and laws enacted by Congress. Further, I agree with the majority that review of federal cases can be beneficial in analyzing issues that arise under the West Virginia Rules of Civil Procedure, since our rules are largely consonant with (although not identical to, as the majority intimates) their federal counterparts. However, I am not required to, nor will I, march in lockstep with federal decisions that I believe erect barriers to West Virginia citizens’ right to seek redress for injuries in the courts of this State, pursuant to the laws of this State. As noted above, the majority acknowledges the existence of a "current trend toward heightening plaintiffs’ burden[,]" and my question is this: why does the majority apparently view this as a positive development in the federal law, and seek to bring West Virginia into line with this view?
In this latter regard, the majority opinion intimates, although it does not directly state, that in State ex rel. West Virginia University Hospitals, Inc. v. Gaujot , 242 W. Va. 54, 829 S.E.2d 54 (2019), a case in which two members of this Court did not participate, we effectively adopted federal analytical standards in class certification cases in lieu of the standards set in our own precedents. If this reading of Gaujot is accurate, then the Court acted under cover of darkness; although several of the syllabus points in the case cite federal precedents, the concepts have long been established in our own case law. For example, although the Court in Gaujot cited only federal cases to support the legal principles set forth in syllabus points five, six and seven – all having to do with the limited and coincidental scope of merits issues in determining class certification questions – the Court admitted in the text of the opinion that "[o]ur prior decisions bear that out[,]" 242 W. Va. at 63, 829 S.E.2d at 63 (citing Chemtall , 216 W. Va. at 455, 607 S.E.2d at 784 ; Ways v. Imation Enterprises Corp. , 214 W. Va. 305, 314, 589 S.E.2d 36, 45 (2003) ).
In summary, although the majority's lengthy exposition of federal law makes for interesting reading, most of it is wholly unnecessary to the decision in this case. Further, to the extent that the majority is attempting to sub silentio overrule any or all of the precepts set forth in Rezulin and its progeny, in order to bring West Virginia in line with the "current [federal] trend toward heightening plaintiffs’ burden[,]" I strongly object both to the majority's tactics and to its intentions. This Court's precedents have stood the test of time and guided our circuit courts, as well as this Court on appellate review, to results that are fair to all parties.
See supra page –––– & note 10, 852 S.E.2d at page 769 & note 10.
Indeed, our precedents guided the court below – a very experienced jurist -- to a fair and legally sustainable result: permitting a class action suit to go forward on the issues of liability and causation, in a case arising from a single event which took place in a defined location over a short period of time, affecting everyone who lived and/or worked within the defined location. The majority reverses this decision, demanding that the court further explain, at great length and in excruciating detail, how these issues could be said to predominate over issues of damages; and that the court further explain superiority, i.e. , how class certification could possibly be a better framework for resolution of 57,000 cases (or even 5,700 cases) than requiring each plaintiff to file an individual lawsuit.
The majority opinion is flatly wrong in its analysis of the facts, creates unnecessary delay in this case, and portends a sea change in our approach to class action cases – a change for the worse. Accordingly, I dissent.
Hutchison, Justice, concurring:
(Filed November 24, 2020)
The majority opinion emphasizes, repeatedly, that a circuit judge weighing a motion under Rule 23 must conduct a "thorough analysis" that gives "careful consideration" to each factor set forth in the rule. I do not believe that this is something new for circuit judges, but it is certainly something with which I must concur.
I write separately because the majority opinion fails to carefully explain the predominance and superiority requirements of Rule 23(b)(3), and it might be perceived by readers as "result oriented."1 Readers might even say the majority opinion is imposing procedure over substance. I, however, believe these requirements have always been a part of this Court's class action jurisprudence, and are really nothing more than flexible guidelines for a circuit court to use to ensure a class action is the best way to resolve a case.
In the mid-1960s, Professor Arthur R. Miller2 famously drafted the first iteration of Rule 23(b)(3) on a portable typewriter while riding in the back seat of a car. In later meetings of the Federal Rules Advisory Committee, Professor Miller explained that he and his colleagues carefully chose words for Rule 23(b)(3) that carried a "notion of generality, because, as they would frequently say, we can't see what's around the corner." Samuel Issacharoff, " An Oral History of Rule 23: An Interview with Professor Arthur Miller," 74 N.Y.U. Ann. Surv. Am. L. 105, 114 (2018).
Rule 23(b)(3) of the West Virginia Rules of Civil Procedure mirrors the 1966 version of federal Rule 23(b)(3) drafted by Professor Miller. The rule begins (with emphasis added):
An action may be maintained as a class action if ...
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
"Predominate" and "superior" are two of the carefully chosen words with a "notion of generality" that were written into Rule 23(b)(3), and the majority opinion is built upon them. The federal rules committee expressed concern that a class action judgment might bind hundreds of "absentee" individuals without their participation or knowledge. The rules committee settled on the word "predominate" in Rule 23(b)(3) as a guideline to protect those individuals absent from the proceedings, and they required litigants prove that a class action is "superior" to other litigation methods. According to Professor Miller, "predominance" and "superiority" means that
you've got to get a lot of judicial bang for the buck before you certify under (b)(3). This has got to be a true efficiency economy win before you bind people with the (b)(3). It's got to be superior. God knows what that means, "superior." But it was understood to be protective.... Words like "predominance" and "superiority" were like silly putty that could be molded in any way by a judge in a particular context.
Id. , 74 N.Y.U. Ann. Surv. Am. L. at 116-17 (emphasis added).
Read that quote again. They guy who actually drafted the rule, and who was in the room when the rules committee debated and tweaked and adopted the rule, says the words "predominate" and "superior" in Rule 23(b)(3) are "like silly putty that can be molded in any way by a judge in a particular context."3
Back in 2003, I was the circuit judge on the receiving end of the main case discussed in the majority opinion, In re West Virginia Rezulin Litig. , 214 W. Va. 52, 585 S.E.2d 52 (2003). After this Court reversed my earlier decision, Rezulin was remanded to my court to be given effect. So it is fair to say: I am intimately familiar with the case. The majority opinion suggests that it is "modifying" Rezulin to incorporate some detailed new standard, but the fact is the majority opinion really just created a new syllabus point that emphasizes trial courts should do what they've already been doing under Rezulin : applying a Rule 23(b)(3) predominance and superiority analysis to Rule 23(b)(3) class actions.
My sense, and the sense of my colleagues, is that a class action is probably the best way to address the alleged injuries to the thousands of residents impacted by the warehouse fire. This was a massive week-long fire that consumed an entire warehouse in Parkersburg. In just the first 12 hours, firefighters pumped six million gallons of water onto the fire, much of which may have flowed back into a nearby river. The warehouse fire incinerated everything, including tons of toxic materials like PVCs, formaldehyde, and styrene, and then vented poisonous smoke into the air of the surrounding city. The fire was so extensive that the governor declared a state of emergency, and the county commission declared it a disaster.
As this Court said in Rezulin , when a court does a "predominance" analysis, a single common issue can outweigh many individual issues. Rezulin , 214 W. Va. at 72, 585 S.E.2d at 72. "The predominance analysis is a pragmatic one. It is not a numerical test ... A single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions." 2 William B. Rubenstein, Newberg on Class Actions § 4:51 (5th Ed. 2020). Likewise, "[t]he superiority determination involves, either explicitly or implicitly, a comparison of the class action ... as a procedural mechanism to available alternatives." Id. at § 4:64. See also Principles of the Law of Aggregate Litigation § 2.02 (a court should "authorize aggregate treatment of a common issue by way of a class action if the court determines that resolution of the common issue would ... materially advance the resolution of multiple civil claims by addressing the core of the dispute in a manner superior to other realistic procedural alternatives, so as to generate significant judicial efficiencies[.]").
When a trial court or this Court performs a Rule 23 analysis, do not let the trees blind you to the forest:
Defendants attempting to avoid class certification will, almost exclusively, overwhelm a circuit judge with the differences between each class member's case. It is akin to a judge being asked to look at a forest of oak trees and being told the difference between each tree: each tree has a different height, a different color, a different number of leaves, a unique number of branches, a wide variation in the number and size of tree rings, and so on.
The test for the judge, though, is to step back and look at the similarities in class members. Step back and see the forest. No matter the number of branches or leaves, a collection of oak trees has enough similarities to be called a "class" of oak trees. So, on remand, the judge in the instant case should do the same: focus on the class members and find their similarities.
Gulas v. Infocision Mgmt. Corp. , 215 W. Va. 225, 230, 599 S.E.2d 648, 653 (2004) (Starcher, J., concurring).
In this case, it is fair to say that the plaintiff's counsel did not make a detailed showing, and so the circuit court made perfunctory findings, about predominance and superiority. When this case returns to the circuit court, this Court expects the circuit court to hold the parties’ feet to the fire. In sum, the trial judge has to explain that a class action will achieve true efficiency, true economy, and a lot of judicial bang for the buck before a class action can be certified under Rule 23(b)(3).