Twenty-five families affected by alleged defects in the drug Zoloft filed a multi-plaintiff case against Pfizer and other defendants. Two of the families were from the State of New York where Pfizer has its principal place of business and citizenship and the others were from West Virginia. Thereafter, the defendants attempted to remove the case from circuit court claiming that the West Virginia plaintiffs could be “selectively” removed from the matter as each family’s filing constituted a separate case under Rule 3 of the West Virginia Rules of Civil Procedure. That contention was rejected in federal court and the case was remanded. Thereafter, additional families filed Zoloft cases which were then consolidated and referred to the Mass Litigation Panel. The Mass Litigation Panel took a different approach to Rule 3(a) concluding that each case was in fact separate. The Mass Litigation Panel’s decision was rendered sua sponde without briefing. Accordingly, the petitioners contend that the Mass Litigation Panel was unaware that its interpretation of Rule 3 would lead to the removal of most of the cases referred to the Mass Litigation Panel in the first place.
Does the requirement that each plaintiff family pay a separate filing fee under Rule 3 of the West Virginia Rules of Civil Procedure create separate cases for each such family such that a defendant may selectively remove non-diverse plaintiffs from a mass litigation panel proceeding, to federal court?
The Petitioners prevailed here on the interpretation of Rule 3 and Rule 20 of the West Virginia Rules of Civil Procedure. Chief Justice Davis, long a pre-eminent scholar in the area of civil procedure, wrote the opinion.
The Court analyzed the Rule 20 issue first and explained that under long-standing West Virginia and federal law, Rule 20 allows cases that arise from a sequence of related transactions or occurrences to be joined together in a single lawsuit. The test for relatedness is a logical one, and does not mean the transactions need to be "identical." Instead, the "sharing" of operative facts among the claims joined is enough to allow joinder. Op. at 13. This mass tort case, where all claims arose from issues related to the prescription of the drug Zoloft, satisfies the Rule 20 test, including part 2 of the test, the existence of common questions of law or fact.
The second rule at issue was Rule 3. The Zoloft defendants claimed that Rule 3, by requiring separate filing fees for each family made part of the case, was actually making each case a separate one. The objective was to individually remove cases that did not include a non-diverse plaintiff to federal court, splitting those cases off from the whole, which was concededly non-removable. The Court had previously allowed a fee to be charged per-family in mass tort cases to relieve the financial burden on clerk's offices that arise when a large litigation is filed under the aegis of a single complaint. See Cable v. Hatfield.
The Court completely rejected the Zoloft defendants' theory, that had been adopted by the mass litigation panel. In a fairly cut-and-dried fashion, the Court made it clear that the Court itself is the final arbiter of the Rules of Civil Procedure, and that the Zoloft defendants' citation to the Panel's conceptions of its purposes could not withstand the previous caselaw holding that joined cases are joined and cannot be treated as separate merely on the basis of the fees. Rule 3 is simply an administrative convenience, and does not overrule or modify Rule 20. As the Court put it:
"All that Rule 3(a) was intended to do was to attach a separate filing fee and record keeping docket number for multiple persons, not related by marriage, a derivative or fiduciary relationship, who are joined as plaintiffs in a complaint . . . if this Court had sought to achieve the Panel’s interpretation of Rule 3(a), we necessarily would have had to abolish Rule 20(a)."
Op. at 25-27. The Court then went on to address one additional issue in its opinion.
The final issue related to the Panel's overstepping its bounds. While not the focus of the briefs of the parties, the Court was acutely aware that the two cases (not twenty-five cases, as Respondents alleged) were referred to the Panel by the Chief Justice. The motion practice out of which the referral order arose specifically addressed the Respondents' contention that there were twenty-five cases, by the referral order specifically referred just two. This implicit or explicit rejection of the Respondent's position should have counted for more with the Panel, as the Court's opinion pointed out. Op. at 34-36. The Court emphatically stated:
"The Mass Litigation Panel does not have authority to vacate an order of the Chief Justice of the West Virginia Supreme Court of Appeals. Therefore, when an order of the Chief Justice transfers cases to the Panel, the Panel has no authority to separate the cases under Rule 3(a) of the West Virginia Rules of Civil Procedure for the purpose of substantively increasing the number of cases that were transferred." Op. at 38.
This case came down rather resoundingly in favor of the Petitioners. They prevailed on each issue of Rule interpretation they had raised and the Court then added a substantial rebuke to the Mass Litigation Panel in terms of ignoring the Chief Justice's order of referral and, in effect, trying to nullify it. Litigants defending mass litigation have long looked to expand federal jurisdiction over such claims, believing that to be a friendlier forum for defendants. But the law of West Virginia and federal law on what constitutes a properly-joined case frustrated them in this case.