In Re: Asbestos, Silica and Catalyst Dust Claims II

• Court: Superior Court of The Virgin Islands
• Decided: February 16, 2021
• Docket: SX-2021-MC-50
• Status: Published

Opinion

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

Master Case No SX 2021 MC 057 IN RE Asbestos, Silica and Catalyst (Complex Litigation Division) Dust Claims 1! Re SX 2021 CV 013 050

Cite as 2021 VI Super 113?

Appearances J Russel B Pate, Esq The Fate 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 Florham Park NJ 07932 0668 For Defendants Hess Corporation and Hess 0!! New York Corporation

Ryan Stutzman, Esq CSA Associates P A St Croix USVI 00820 For Defendant Virgin Islands Industnal Maintenance Corporation in Re Asbestos Silica and Catalyst Dust Claims 1 SX 21 CV 057 2021 Vi Super Memorandum Opinion Page 2

MEMORANDUM OPINION (Filed November 16 2021)

Andrews, Jr, Judge

INTRODUCTION

111 Plaintiffs both 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 conciudes the preference requested by

Plaintiffs (a trial date beyond 180 days after filing) is not permissible by the Act

The Court will thus deny the motion

FACTUAL BACKGROUND

112 Plaintiffs Alfred Mitchell and Alwyn Greene both over the age of 70

commenced the above referenced complex civil actions on January 12 and 25

2021 1 They seek damages for injuries aiiegedly suffered as a result of their

exposure to asbestos siiica and catalyst dust while employed at Hess Oil Refinery

Wnder the instant master case (8X 2021 MC 00057) A total of 13 similar cases are grouped thereunder 2 of which involve the instant plaintiffs In Re Asbestos Silica and Catalyst Dust Claims i SX 21 CV 057 2021 Vi Super Memorandum Opinion Page 3

between 1969 and 2007 See Complaints (SX 2021 CV 013 Jan 21 2021) (SX

2021 050 Jan 25 2021) On August16 2021 the Governor ofthe Virgin Islands

signed Bill No 34 0076 into law which later became Act No 8468 codified at 5

VI § 31(b) On September 17 2021 Plaintiffs filed the instant Motion for

Expedited Trial Setting pursuant to the new iaw 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 deadiines OMS No 16

LEGAL ANALYSIS

1B Plaintiffs seek a preferential 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

Piaintiffs reply Defendants constitutional chalienge is void for faiiure to notify the

Attorney General of the Virgin islands of the chalienge and Plaintiffs do not seek

a trial date within the strict iimits of the new iaw but rather requests an expedited

scheduling order Omnibus Reply p 2 2 As explained below Plaintiffs use of the

2 The Court notes that Defendants have since filed the requisite notice to the Attorney Genera: of the Virgin islands pursuanttth R cw P 51 CMS No 15 In Re Asbestos Silica and Catalyst Dust CIaims i SX 21 CV 057 2021 VI Super Memorandum Opinion Page 4

Act is improper Hence the Court declines to appIy it and need not reach the

constitutional issue raised by Defendants

1) The Provisions of Act 8468 are Mandatogy

114 Plaintiffs motion is grounded on Act 8468 This new law provides in

pertinent part as foilows

(b) Motion for preference eideriy' medical reasons time of triai

(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 eiderly party the court shall set the matter for trial not more than 180 days from the date that the elderly party moves for Qreference There shall be no continuance beyond 180 days from granting the motion for preference except for physical disabiiity 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 i C §§ 31(b)(1) b(4) (emphasis suppiied) Act No 8468 Aug 16 2021 in

anatyzing the provisions of Act 8468 the Court reads words and phrases within

their context and construes them according to the common and approved usage

of the English language 1 V I C § 42 Statutory interpretation commences with

the plain language of the statute if the language is ctear and unambiguous there In Re Asbestos Silica and Catalyst Dust Claims I 8X 21 CV 057 2021 VI Super Memorandum Opinion Page 5

is no need to resort to any other rule or statutory construction Shoy v People 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 59Vl 590 598 (Vt 2013)

115 Here the statute in question provides that the court shat! grant the

motion upon a finding that the party has a substantial interest in the action as a

whole 5 V | C § 31(b)(1) It also provides that upon granting the motion the court

shat] set the matter for trial not more than 180 days from the date that the etderly

party moves for preference 5 V | 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 Groug, LLC

v Govtofthe USVl 66Vl 552 560 (V1 2017) quoting Shoyv People 55

VI 919 927 (VI 2011) The legislative intent here is quite manifest The Court

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

5 V | C § 31(b)(3) (emphasis supplied) The Legislature placed this provision In Re Asbestos Silica and Catalyst Dust Claims I SX 21 CV 057 2021 VI Super Memorandum Opinion Page 6

(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 ianguage chosen is piainly mandatory this Court is

bound to enforce it Hardtv Reliance Standard Life Ins Co 560 US 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 whole

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 concluded

that the language of the statute was intended to be mandatory irrespective of the

circumstances leading to the motion for preference 191 at 84 It reasoned that the

word shall is ordinarily used to express what is mandatory M at 86 Similarly in

Cruz v Integrated Health Admin ServI Inc 53 N Y 8 3d 497 498 (Sup Ct N Y

2017) the New York court interpreted the following statute which provided in

pertinent part In Re Asbestos Silica and Catalyst Dust Claims i SX 21 CV 057 2021 VI Super Memorandum Opinion Page 7

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

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

NY CLS CPLR R 3403 In finding the provisions of the statute mandatory the

New York court stated given that the legislature 5 use of the imperative shell is

mandatory not permissive this court may not decide to grant or deny a trial

preference by exercising its discretion Cruz 53 N Y S 3d at 498 These cases

serve as guidance in interpreting the similarly enacted Virgin Islands statute O_ttlgy

v Est of Bell 61 VI 480 494 n 10 (V! 2014) (stating when statutes from other

jurisdictions are substantially similar to a Virgin islands statute this Court may look

for guidance at how that jurisdiction 5 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 Plaintiffs would 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

age would require the setting of a trial date under the Act of no later than 180

days from the fiiing of Plaintiffs motion That deadline would be March 16 2022

See 5 V | C § 31 (b)(4) Plaintiffs however do not seek this statutory trial deadline In Re Asbestos Silica and Catalyst Dust Claims I SX 21 CV 057 2021 VI Super Memorandum Opinion Page 8

118 In support of their motion for expedited trial setting Plaintiffs

referenced Act No 8468 and highlighted certain provisions therein They

emphasized tanguage 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 ctarified that they

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

Reply p 2 (emphasis supplied) In fact Plaintiffs requested a scheduling deadline

of July 22 2022 to fiie dispositive motions See Reply Ex A 1] 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

deadtine or its 30 day continuance provision (i 9 April 16 2022) Thus Plaintiffs

use of the Act to achieve such a result is improper

fig In sum Plaintiffs seek application 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 In Re Asbestos Silica and Catalyst Dust Claims I 8X 21 CV 057 2021 V! Super Memorandum Opinion Page 9

Acts 180 day trial deadline See Motion for Expedited Trial Setting (stating the

word shell is mandatory it does not afford this Court discretion ) They urge this

Court to ignore the mandatory statutory trial deadline and set a scheduling order

in accordance with their preference Plaintiffs seek a preferential trial date which

they clearly can 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 compiex cases See V I R Civ P 93(0) This Court will

not condone such improper use of the Act

CONCLUSION

{[10 This Court concludes that the relief sought by Plaintiffs pursuant to

Act 8468 ie a trial date beyond that authorized by the Act is mega! 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

ALPHONSO G ANDREWS JR Superior Court Judge In Re Asbestos Siiica and Catalyst Dust Claims I SX 21 CV 057 2021 VI Super Memorandum Opinion Page 10

ATTEST TAMARA CHARLES Clerk of the Court

BY 6 % £A—~ urt Clerk 111