In re Asbestos, Catalyst, & Silica Toxic Dust Exposure Litigation

67 V.I. 544
CourtSuperior Court of The Virgin Islands
DecidedAugust 23, 2017
DocketMaster Case No. SX-15-CV-096
StatusPublished
Cited by2 cases

This text of 67 V.I. 544 (In re Asbestos, Catalyst, & Silica Toxic Dust Exposure Litigation) is published on Counsel Stack Legal Research, covering Superior Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Asbestos, Catalyst, & Silica Toxic Dust Exposure Litigation, 67 V.I. 544 (visuper 2017).

Opinion

MOLLOY, Judge

MEMORANDUM OPINION

(August 23, 2017)

BEFORE THE COURT is a motion filed by Defendants Hess Oil Virgin Islands Corporation (“HOVIC”) and Hess Corporation (“Hess”) to extend the discovery deadlines in the twelve cases (“Group A cases”) selected to begin jury selection and trial at the end of the year as bellwethers for a much larger group of cases. Defendants assert that “the fact discovery that remains to be completed for the Group A Plaintiffs will take at least six and up to nine months under a best case scenario with both sides continuing to push multiple depositions and inclusive of medical depositions.” (Defs.’ Emergency Mot. to Extend June 30 Fact Disc. Deadline & Other Deadlines Accordingly Re: Group A Cases 12, filed July 5, 2017 (hereinafter “Mot.”).) Plaintiffs oppose, countering that “the 122 aging Plaintiffs in this case should not be prejudiced by Defendants’ failure to zealously defend these cases and to devote appropriate resources.” (Pis.’ Opp’n to Defs.’ Emergency Mot. to Extend Deadlines and Move Trial Date 4, filed July 17, 2017 (hereinafter “Opp’n”).) The Court heard argument on August 14, 2017 and from the bench granted in part and denied in part Defendants’ motion. This memorandum opinion and the accompanying order follow to reduce that decision to writing and the reasoning in support. See VI. R. Crv. P. 85.

I. BACKGROUND

On December 19, 2013, sixty-five people filed sixty-five “master” complaints in the Superior Court of the Virgin Islands against Hess and HOVIC for negligence. Plaintiffs allege they were exposed to asbestos during the years they worked at the former oil refinery on St. Croix. Except for the numbers assigned by the Clerk’s Office,1 the complaints [547]*547were identical. The Clerk’s Office randomly assigned all sixty-five cases as a set to the undersigned judge. On May 17, 2014, another sixty-two “master” complaints were filed for sixty-two more people. The Clerk’s Office assigned this second set of cases at random to another judge.

Defendants responded to both “sets” of cases by filing the same two motions: a motion to dismiss for failure to state a claim for relief and a motion to stay pending a ruling on the motion to dismiss. Plaintiffs filed responses in opposition to the motions to dismiss and further sought leave to supplement the master complaints with what they referred to as “Schedule A,” to provide additional allegations about their prior work histories, their dates of birth, and dates of their diagnoses with interstitial lung disease. This Court heard argument on January 23, 2015 in the first set of cases and from the bench granted Defendants’ motions to dismiss and denied as moot the motions to stay. The Court determined that commencing civil actions by a master complaint with global allegations as to all plaintiffs and all defendants, but without any allegations specific to each plaintiff and each defendant, was improper. Plaintiffs’ attempt to supplement the complaint with allegations about events that occurred before they filed the “master” complaint was also improper. Pleadings can be supplemented, but to add allegations about events that occur after the complaint has been filed, not before. Cf. Brady v. Cintron, 55 V.I. 802, 812 n.11 (V.I. 2011). However, since leave to amend would not have been futile, the Court construed Plaintiffs’ motion to supplement as a motion for leave to amend, and granted it. Plaintiffs were given thirty days to refile individual amended complaints.

Around the same time, the Administrative Judge of the Superior Court scheduled and then held a global status conference to discuss with counsel options for more efficiently managing the complex and toxic tort cases pending in the St. Croix District. See generally In re Alumina Dust Claims, 67 V.I. 172 (Super. Ct. 2017); Willie v. Amerada Hess Corporation, 66 V.I. 23, 35 (Super. Ct. 2017). During the status [548]*548conference, counsel for Plaintiffs and counsel for Defendants represented that the second set of cases filed in 2014 could be coordinated together with the set filed in 2013 for pre-trial purposes. With the consent of the undersigned judge — and later with the approval of the Presiding Judge, cf. Alumina Dust Claims, 67 V.I. 172; see also Order, entered Nov. 9, 2015 — the Administrative Judge reassigned the 2014 cases to the undersigned judicial officer, directed the Clerk to open a master case captioned In re Asbestos, Catalyst, and Silica Toxic Dust Exposure Litigation, and consolidated the 2013 and 2014 cases (127 cases in total) under the Toxic Dust Exposure master case for pretrial purposes.

Once the 2014 cases were reassigned, this Court immediately issued an order to resolve the motions to dismiss, to stay, and for leave to file a supplemental Schedule A similar to the 2013 cases. The Court also issued a case management order and then a scheduling order in the master case to govern pre-trial matters. After later hearing argument from counsel on how best to manage all the individual cases simultaneously, the Court resolved to take a somewhat different approach than those advocated by counsel. Hess and HOVIC had insisted on taking a “routine” approach: full discovery in each case and then mediation. (See Hr’g Tr. 12:12-18 (Aug. 26, 2015) (“MS. BENOIT: Defendant[s] essentially envision, your Honor, completing discovery in all the case[s], that include [s] written discovery, depositions and day minimum [sic], the exchange of plaintiffs’ expert reports. THE COURT: In what time frame? MS. BENOIT: However long it takes to get that done.” (formatting altered)); id. at 14:18 (“MS. BENOIT: After discovery is complete, your Honor, mediation would be scheduled.”).) Plaintiffs, by contrast, insisted on taking the “domino” approach: only a few cases needed to go forward and the rest could be stayed after minimal discovery because, once a few cases were tried and multi-million dollar judgments awarded, Defendants would settle all the other cases. See id. at 8:21-9:8 (“[W]hen the first bellwether case is tried that will solidify the liability argument with whatever the jury decides. And then if we need to have two other trials after that we can do those trials, but... the vast amount of cases show that after a bellwether trial or two the group resolves. THE COURT: So what happens after discovery with the remaining one hundred and eight cases? MR. PATE: If — if the three bellwether cases are tried and the defendants continue to want to try the other cases we need to setup another group of bellwether cases out of the group.”). In other words, Defendants wanted full [549]*549discovery in all the cases while Plaintiffs wanted as little discovery as possible in the fewest number of cases. This Court split that baby and took the middle approach.

Mindful of the Superior Court’s limited resources, the Court decided upon a tracked approach. All Plaintiffs were ordered to submit to a medical examination by a physician or other medical professional chosen by Defendants. Both sides were ordered to exchange written discovery, including authorizations by Plaintiffs for the release of their medical records. Once both conditions were met — Plaintiffs examined and written discovery exchanged — the cases would be assigned to different tracks. Twelve cases, four selected by Plaintiffs’ counsel and four selected by Defendants’ counsel — would be designated as Group A along with another four chosen by the Court at random.

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Related

Augustin v. Hess Oil Virgin Islands Corp.
67 V.I. 488 (Superior Court of The Virgin Islands, 2017)
Wilson v. Hess Oil Virgin Islands Corp.
67 V.I. 523 (Superior Court of The Virgin Islands, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
67 V.I. 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-asbestos-catalyst-silica-toxic-dust-exposure-litigation-visuper-2017.