In Re: Asbestos, Silica and Catalyst Dust Claims I

2021 VI Super 114P

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

‘ Master Case No SX 2021 MC 058 IN RE Asbestos, Silica and Catalyst + (Complex Litigation Division)

Dust Claims I i 1 Re SX 2020 CV 261 264 266 267

Cite as 2021 VI Super 114P

Appearances J Russel B Pate, Esq The Pate Law Firm St Thomas USVI 00804 For Plaintiffs

Korey A Nelson, Esq Burns Charest LLP New Orleans LA 70130 For Plaintiffs

Warren T Burns, Esq Burns Chares LLP Dallas Texas 75201 For Plaintiffs

Carl A Beckstedt Ill Esq Beckstedt & Kuczynski LLP St Croix USVI 008204 For Defendants Hess Corporation and Hess 01/ New York Corporation

Joseph T Hanlon, Esq and Carolyn F O’Connor, Esq Wilson Elser Moskowitz Edelman and Dicker LLP Fiorham Park NJ 07932 0668 For Defendants Hess Corporation and Hess 01! New York Corporation

Ryan Stutzman, Esq CSA Associates P A St Croix USVI 00820 For Defendant Virgin Islands Industrial Maintenance Corporation

In Re Asbestos Silica and Catalyst Dust Claims I SX 21 CV 058 2021 VI Super MP Memorandum Opinion Page 2

MEMORANDUM OPINION

(Filed November 16 2021)

Andrews, Jr , Judge INTRODUCTION

1“ Plaintiffs each over 70 years of age bring this action for damages against defendant oil refinery companies They allege that during their employment Defendants negligently exposed them to toxic substances which caused them to suffer injuries Based upon their senior status Plaintiffs move to expedite their trial date by invoking the provisions of a newly enacted Virgin Islands law that is Act No 8468 Defendants assert that the new law violates the separation of powers doctrine and should not be applied to complex cases For the reasons mentioned below this Court concludes the preference requested by Plaintiffs (a trial date beyond 180 days after filing) is not permissible by the Act The Court wit! thus deny the motion FACTUAL BACKGROUND

112 Plaintiffs Alfred Wilson Cleaver A Drayton Alex G LeBlanc and Ambrose A Hamilton at! over the age of 70 commenced the above referenced complex civil actions on March 3 2020 and March 17 2020 1 They seek

Wnder the instant master case (ex 2021 MC 00058) Atotal of 41 similar cases are grouped thereunder 4 of which involve the instant plaintiffs

In Re Asbestos Silica and Catalyst Dust Claims I SX 21 CV 058 2021 VI Super MP Memorandum Opinion Page 3

damages for injuries allegedly suffered as a result of their exposure to asbestos silica and catalyst dust while employed at Hess Oil Refinery between 1969 and 2007 See Complaints (SX 2020 CV 261 Mar 17 2020) (SX 2020 CV 264 266 267 Mar 3 2020) On August 16 2021 the Governor of the Virgin Islands signed Bill No 34 0076 into law which later became Act No 8468 codified at 5 VI § 31(b) On September 16 2021 Plaintiffs flied the instant Motion for Expedited Triai Setting pursuant to the new law Each of them assert they are over 70 years of age (73 74 77 and 79) Motion for Expedited Trial p 1 On October 15 2021 Defendants filed an opposition to Plaintiffs motion On October 19 2021 Plaintiffs filed a reply to Defendants opposition and attached a case management schedule containing proposed deadlines OMS No 16 LEGAL ANALYSIS

1T3 Plaintiffs seek a preferentiai trial setting based on the senior status provision of Act No 8468 They assert the Act mandates this Court to grant their motion and to set a preferential trial date Defendants argue the statute is procedural in nature and violates the separation of powers doctrine Opp p 2 Plaintiffs reply Defendants constitutional challenge is void for failure to notify the Attorney General of the Virgin Islands of the challenge and Plaintiffs do not seek a trial date within the strict limits of the new law but rather requests an expedited

In Re Asbestos Silica and Catalyst Dust Claims t SX 21 CV 058 2021 VI Super11§P Memorandum Opinion Page 4

scheduling order Omnibus Reply p 2 2 As explained below Ptaintiffs use of the Act is improper Hence the Court declines to apply it and need not reach the constitutional issue raised by Defendants 1) The Provisions of Act 8468 are Mandatory 114 Plaintiffs motion is grounded on Act 8468 This new law provides in pertinent part as follows (b) Motion for preference elderly' medical reasons time of trial

(1) A party to a civil action who is over 70 years of age or older may petition the court for a preference which the court shall grant if it finds that the party has a substantial interest in the action as a whole

(4) Upon the granting of a such a motion for preference for an elderly party the court shall set the matter for trial not more than 180 days from the date that the elderty party moves for Qreference There shall be no continuance beyond 180 days from granting the motion for preference except for physical disabitity of a party or party 3 attorney or upon a showing of good cause stated in the record Any continuance shall be for no more than 30 days and no more than one continuance for physical disability may be granted to any party

5 V! C §§ 31(b)(1) b(4) (emphasis supplied) Act No 8468 Aug 16 2021 In analyzing the provisions of Act 8468 the Court reads words and phrases within

2 The Court notes that Defendants have since flied the requisite notice to the Attorney General of the Virgin Islands pursuanttth R CIV P 51 OMS No 15

In Re Asbestos Silica and Catalyst Dust Claims I SX 21 CV 058 2021 VI Super MP Memorandum Opinion Page 5

their context and construes them according to the common and approved usage of the English language 1 V t C § 42 Statutory interpretation commences with the plain language of the statute If the tanguage is clear and unambiguous there is no need to resort to any other rule or statutory construction Shoy v Peogle 55 VI 919 926 (VI 2011) Thus courts proceed under the assumption that the legislature's intent is manifested through the ordinary meaning of the words chosen Sonsonv Peogle 59V! 590 598 (VI 2013)

115 Here the statute in question provides that the court shall grant the motion upon a finding that the party has a substantial interest in the action as a whole 5 V l C § 31(b)(1) It also provides that upon granting the motion the court shall set the matter for trial not more than 180 days from the date that the elderly party moves for preference 5 V l C § 31(b)(4) The language shall in the context of the statute is clear and unambiguous Such term normally serves to create an obligation impervious to judicial discretion Lexecon Inc v Milberg Weiss Bershad Hynes & Lerach 523 U S 26 35 (1998) Coral Mgmt Group, LLC v Govtof the U SVl 66Vl 552 560 (VI 2017) quoting Shoyv Peogle 55 Vi 919 927 (Vi 2011) The legislative intent here is quite manifest The Court considers that the Legislature chose the contrasting auxiliary verb may in other parts of the statute For example the statute also provides in part In its discretion the court may also grant a motion for preference in Re Asbestos Silica and Catalyst Dust Claims i SX 21 CV 058 2021 VI SuperMP Memorandum Opinion Page 6

that is accompanied by clear and convincing medical documentation that concludes that the movant who is a party suffers from an iiiness or condition raising substantial medical doubt of survivai of that party beyond six months

5 V | C § 31(b)(3) (emphasis supplied) The Legislature pieced this provision (which grants a preference to the terminally ill) within the court 3 discretion by use of the term may it is thus quite aware of the differing imports between the terms shall and may Since the language chosen is plainly mandatory this Court is bound to enforce it Hardt v Reiiance Standard Life Ins Co 560 U S 242 252 130 S Ct 2149 (2010) (We must enforce plain and unambiguous statutory language according to its terms )

116 Two jurisdictions with similar statutes have drawn the same conclusion in Rice v Super Ct 136 Cal App 3d 81 (1982) the California appeals court construed a statute which provided that

A civil case shall be entitled to preference upon motion of any party to such action who has reached the age of 70 years unless the court finds that the party does not have a substantial interest in the case as a whoie

Code Civ Proc § 36 subd (a) [pre 1990 Amendment] The statute required the court to set trial within 120 days of granting the motion The Rice court conciuded the language of the statute was intended to be mandatory irrespective of the circumstances leading to the motion for preference 1g at 84 It reasoned that the word shaii is ordinarily used to express what is mandatory Q at 86 Similarly in

In Re Asbestos Siiica and Catalyst Dust Claims I SX 21 CV 058 2021 VI Super MP Memorandum Opinion Page 7

Cruz v integrated Health Admin Serv , Inc 53 N Y S 3d 497 498 (Sup Ct N Y 2017) the New York court interpreted the following statute which provided in pertinent part

(a) Preferred Cases Civil cases shalt be tried in the order in which notes of issue have been filed but the following shall be entitled to a preference

4 in any action upon the application of a party who has reached the age of seventy years

NY 01.8 CPLR R 3403 In finding the provisions of the statute mandatory the New York court stated given that the legislature 8 use of the imperative shaii is mandatory not permissive this court may not decide to grant or deny a triai preference by exercising its discretion Cruz 53 N Y 8 3d at 498 These cases serve as guidance in interpreting the similarly enacted Virgin Islands statute m v Est of Bell 61 VI 480 494 n 10 (VI 2014) (stating when statutes from other jurisdictions are substantiaiiy similar to a Virgin Islands statute this Court may look for guidance at how thatjurisdiction s courts have interpreted the similar statute ) Accordingly this Court finds that the provisions of Act 8468 are mandatory 2) Plaintiffs Use of Act No 8468 is Improper 117 Piaintiffs wouid be the sole beneficiaries of any money damages awarded pursuant to their complaint See Complaints p 14 They thus have a substantial interest in the outcome of the action Such interest coupled with their

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age would require the setting of a trial date under the Act of no later than 180 days from the filing of Plaintiffs motion That deadline would be March 16 2022 See 5 V l C § 31 (b)(4) Plaintiffs however do not seek this statutory trial deadline 118 in support of their motion for expedited triai setting Plaintiffs referenced Act No 8468 and highlighted certain provisions therein They emphasized language that 1) mandates the grant of a trial preference upon a finding that a party is over 70 years of age and has a substantial interest in the action as a whole and 2) mandates the setting of a trial not more than 180 days from the date the motion for trial preference is filed Mot for Expedited Trial p 1 However in their reply Plaintiffs clarified that they

did not ask for nor met the ridged time restrictions of the new law All glaintiffs are asking for is that this Court enter the grogosed scheduling orders which expedite plaintiffs over the age of 70 and/or in mental and physical decline as lead plaintiffs

Reply p 2 (emphasis supplied) In fact Plaintiffs requested a scheduling deadline of July 22 2022 to file dispositive motions See Reply Ex A 11 10 As a practical matter that proposed deadline would yield a trial date no earlier than September 2022 some six months beyond the March 16 2022 deadline mandated by the Act Nothing in the Act permits the court to set a trial date beyond the 180 day deadline or its 30 day continuance provision (i e April 16 2022) Thus Plaintiffs use of the Act to achieve such a result is improper in Re Asbestos Silica and Catalyst Dust Claims l SX 21 CV 058 2021 VI Super MP Memorandum Opinion Page 9

119 in sum Plaintiffs seek appiication of the trial preference provision of the Act but not the mandatory 180 day trial setting provision Despite their concession that the provisions of the Act are mandatory they seek to elude the Acts 180 day trial deadiine See Motion for Expedited Trial Setting (stating the word shall is mandatory it does not afford this Court discretion ) They urge this Court to ignore the mandatory statutory trial deadline and set a scheduiing order in accordance with their preference Plaintiffs seek a preferential trial date which they can clearly pursue without the new law The Act however is not a vehicle to transport Plaintiffs to their desired trial date Such use thereof constitutes an attempt to restrict and/or undermine this Courts discretion in determining case management orders in complex cases See V l R Civ P 93(0) This Court will not condone such improper use of the Act CONCLUSION

THO This Court concludes that the relief sought by Plaintiffs pursuant to Act 8468 ie a trial date beyond that authorized by the Act is illegal and tantamount to re writing the Act Accordingly the Court will deny their motion without prejudice for them to either seek a preferential trial date in compliance with the Act or on alternative grounds should they so desire An order consistent herewith will be entered contemporaneously

In Re Asbestos Silica and Catalyst Dust Claims I 8X 21 CV 058 2021 VI Super MP Memorandum Opinion Page 10

ALPHONSO G ANDREWS JR

Superior Court Judge

ATTEST TAMARA CHARLES Clerk of the Court //g :

BY V”

C rt Clerk III