State of West Virginia, ex rel., Surnaik Holdings of WV, LLC v. Honorable Thomas A. Bedell, sitting by assignment as Judge of the Circuit Court of Wood County and Paul Snider ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
_______________
June 8, 2022
No. 21-0610 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA, EX REL.,
SURNAIK HOLDINGS OF WV, LLC
Petitioner,
v.
HONORABLE THOMAS A. BEDELL,
sitting by assignment as Judge of the Circuit Court of Wood County;
and PAUL SNIDER,
Respondents.
________________________________________________________
Petition for a Writ of Prohibition
WRIT DENIED
________________________________________________________
Submitted: January 12, 2022
Filed: June 8, 2022
Ryan McCune Donovan, Esq. Alex McLaughlin, Esq.
J. Zak Ritchie, Esq. John H. Skaggs, Esq.
Andrew C. Robey, Esq. Calwell Luce diTrapano PLLC
Hissam Forman Donovan Ritchie Charleston, West Virginia
PLLC Counsel for Respondent Snider
Charleston, West Virginia
Counsel for the Petitioner
CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE ARMSTEAD concurs, in part, and dissents, in part, and reserves the
right to file a separate opinion.
JUSTICE BUNN did not participate.
SYLLABUS BY THE COURT
1. “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.” Syllabus Point 8, State ex rel. Surnaik Holdings
of WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020).
2. “Before 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.” Syllabus
Point 8, In re W. Va. Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003).
3. “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
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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.” Syllabus Point 7, State ex rel. Surnaik Holdings of
WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020).
4. “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.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
ii
HUTCHISON, Chief Justice:
This is the second time this class action case, pursued under Rule 23 of the
West Virginia Rules of Civil Procedure, has come to this Court on a petition for relief under
our original jurisdiction. In our prior decision, we granted a writ of prohibition and
dissolved the circuit court’s former class certification order. See State ex rel. Surnaik
Holdings of WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020) (“Surnaik I”).
The petitioner again seeks a writ of prohibition to stop the circuit court’s
most recent order certifying the case for class action relief. As we set forth below, we find
no clear legal error in the order and deny the requested petition for a writ of prohibition.
I. Factual and Procedural Background
In October of 2017, a week-long fire consumed a warehouse in Parkersburg,
West Virginia, owned by the petitioner, Surnaik Holdings WV, LLC (“Surnaik”). The
warehouse tenant at the time was in the business of purchasing and recycling chemical
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waste and other byproducts from chemical manufacturers. The fire was massive, causing
the county commission to declare it a disaster and the governor to declare a state of
emergency. In just the first twelve hours, firefighters pumped six million gallons of water
on the fire.
The tenant was a company called “Intercontinental Export-Import, Inc.,”
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and did business as “IEI Plastics.” Respondents allege that several of Surnaik’s members,
officers, and directors also serve as officers and directors of IEI Plastics.
1
Respondent Paul Snider is a resident of Parkersburg. He alleges that the fire
generated poisonous smoke filled with particulate matter and gasses that blanketed much
of Parkersburg and the surrounding area. The respondent filed the instant action and, under
Rule 23, sought to form a class action composed of all residents and businesses within an
8.5-mile radius of Surnaik’s warehouse. The respondent’s complaint (and later amended
complaint) alleged that Surnaik had allowed the warehouse’s fire protection system to fall
into a state of disrepair. The respondent asserted causes of action for negligence and sought
various forms of compensatory damages on behalf of himself and the putative class
members including for diminution in the value of property, loss of use and enjoyment of
property, lost profits of businesses, and personal injuries.
After the parties conducted discovery, the respondent filed a motion for class
certification. The respondent proposed defining the putative class as containing individuals
who lived in certain geographic areas (called “isopleths”) surrounding the burned
warehouse. Those isopleths met two conditions: beginning with the start of the warehouse
fire, (1) there were concentrations of fine particles 2.5 micrometers or less in size
(“PM2.5”) that had been emitted by the fire; and (2) the fine particles averaged three
micrograms per cubic meter (“3 ug/m3”) or more over any twenty-four-hour period during
the fire. The respondent contended those amounts of fine particles are sufficient to at least
cause irritation and inflammation in the nose, throat, and respiratory tract. An expert
retained by the respondent outlined those isopleths on a map using air dispersion modeling
techniques, data from the fire, and local meteorological data. Another expert calculated
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that about 57,782 individuals resided within the isopleths. Surnaik opposed the
respondent’s motion for class certification.
In an order entered September 12, 2019, the circuit court granted the
respondent’s motion for class certification. The circuit court adopted respondent’s
definition of the class.
Surnaik then petitioned this Court for a writ of prohibition to halt the circuit
court’s September 2019 class certification order. After hearing oral argument by the
parties, we granted the writ of prohibition on November 20, 2020. Overall, our opinion
observed that “class certification determinations are not perfunctory” and that a “circuit
court must give careful consideration” to whether a party seeking class certification has
met the burdens imposed by Rule 23 of the West Virginia Rules of Civil Procedure.
Surnaik I, 244 W. Va. at 256, 852 S.E.2d at 756. We stressed that a circuit court’s analysis
of a class certification motion must be “appropriate and thorough.” Id. at 251, 852 S.E.2d
at 751. We held, in Syllabus Point 8, that “[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.” Id. at 250, 852 S.E.2d at 750.
Finally, we mentioned the rule applicable to all class certification questions:
Before 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
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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 (2003).
Our opinion noted that Surnaik raised five assignments of error to the circuit
court’s order. We distilled those five assignments down to an analysis of the two
requirements imposed by Rule 23(b)(3), usually referred to as the “predominance” and
“superiority” requirements. Rule 23(b)(3) provides that a party seeking class certification
must show “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.”
Regarding the predominance requirement, we adopted the following general
guidelines in Syllabus Point 7:
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.
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Surnaik I, 244 W. Va. at 250, 852 S.E.2d at 750, Syl. pt. 7 (in part). We then examined the
discussion of predominance in the September 2019 certification order and concluded that
“[t]he circuit court’s analysis does not come close to rising to the level that is required.”
Id. at 262, 852 S.E.2d at 762. We found that the certification order did not properly detail
the elements of the respondent’s claims, did not assess whether there were common
questions inherent in those claims, and only summarily concluded that overarching liability
issues predominated over individual questions.
Regarding the superiority requirement, we noted that
[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).
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Id. at 263, 852 S.E.2d at 763 (quoting Perrine v. E.I. du Pont de Nemours & Co., 225 W.
Va. 482, 527, 694 S.E.2d 815, 860 (2010)). We examined the circuit court’s order and,
while we found “more discussion” of superiority than we had found of predominance, we
concluded that the circuit court’s analysis was insufficient.
In Surnaik I, because of the circuit court’s insufficient discussion of the
predominance and superiority requirements of Rule 23(b), we granted the writ of
prohibition. Accordingly, we vacated the circuit court’s September 2019 order granting
class certification.
When the case returned to the circuit court, the respondent renewed his bid
to have the circuit court grant class certification to his case. The defendant again opposed
class certification.
In an order signed June 15, 2021, the circuit court again granted class
certification to the respondent’s case. The circuit court gave the same definition to the
members of the class, defining them by geographic isopleths exposed to certain amounts
of smoke-borne particulates. The difference, however, was that the circuit court’s order
clearly contains the appropriate and thorough analysis of predominance and superiority
required by our decision in Surnaik I. As to predominance, the order includes an element-
by-element analysis of the respondent’s claims (for nuisance and negligence), as well as
Surnaik’s affirmative defenses. The circuit court concluded that the duty and breach of
duty elements for both claims centered on Surnaik’s actions. The circuit court found these
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two elements were not merely common, they were identical to all members of the class
and, therefore, capable of class-wide proof. As to superiority, the circuit court found these
two elements would require the most extensive discovery, document review, fact-witness
depositions, expert testimony, preparation, and trial presentation. The circuit court
balanced these class-wide questions with the individual questions, such as specific property
or personal injury damages, and it found the class-wide questions were predominant and
that a class action was the superior tool to resolve them.
Despite these findings, on July 30, 2021, petitioner Surnaik filed a second
petition for a writ of prohibition with this Court. Surnaik’s petition asserts it is challenging
the circuit court’s June 2021 certification order because it contains “the same flaws that
plagued the first certification” order. We granted a rule to show cause to review the circuit
court’s order, and we allowed the parties oral argument.
II. Standard of Review
Extraordinary remedies like the writ of prohibition should rarely be granted.
“[W]e have clearly stated that extraordinary remedies are reserved for ‘really extraordinary
causes.’” State ex rel. Vanderra Res., LLC v. Hummel, 242 W. Va. 35, 40, 829 S.E.2d 35,
40 (2019) (quoting State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 345, 480 S.E.2d 548,
554 (1996)). As we have explained, “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
7
or having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syl. pt.
3, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
Surnaik argues that the circuit court exceeded its legitimate powers when it
issued its class certification order. In Syllabus Point 4 of State ex rel. Hoover v. Berger,
199 W. Va. 12, 483 S.E.2d 12 (1996), we established our standard of review when such an
allegation is made:
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.
With this standard in mind, we examine Surnaik’s arguments to assess, first and foremost,
whether the certification order contains “clear error as a matter of law.”
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III. Discussion
In its petition to this Court, Surnaik asserts six properly raised assignments
of error. 2 Most of these assignments were previously raised in Surnaik I.
Surnaik’s first, second, third, fifth, and sixth arguments are virtually identical
to arguments made in Surnaik I. 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).” Surnaik I, 244 W. Va. at 255-56, 852 S.E.2d at 755-56. Second and third,
“Surnaik contends that mass accident and toxic tort matters, such as this one, are not
appropriate for class adjudication,” id. at 256, 852 S.E.2d at 756, and that federal courts
refuse to certify similar personal injury claims. Surnaik insists that the certified class is
fatally deficient because the number of uninjured individuals vastly exceeds the injured
At the beginning of its petition, Surnaik identifies six “questions presented”
2
by the circuit court’s certification order. However, the argument section of Surnaik’s
petition contains a seventh assignment of error that is wholly unrelated to the certification
order. It summarily contends that the circuit court erred, in an order dated November 7,
2018, in denying Surniak’s motion to dismiss under Rule 12(b)(6). We find no merit to
this seventh assignment of error and decline to consider it. See Syllabus Point 3, Chapman
v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977) (“The trial court, in
appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss
the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.”). See also, W. Va. R. App. Pro.
Rule 10(c)(3) (requiring a brief to open “with a list of the assignments of error that are
presented for review”); Fairmont Tool, Inc. v. Davis, 868 S.E.2d 737, 745 (W. Va. 2021)
(“[A] clearly defined list of errors permits this Court to focus with clarity on the legal
questions the petitioner alleges affected the lower tribunal’s decision.”).
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and weeding out uninjured class members eviscerates any efficiencies gained through the
class mechanism. Surnaik’s fifth and sixth assignments mirror its third in Surnaik I, which
was that a class cannot be certified “because [respondent] Mr. Snider conceded he did not
suffer any property damage, [and] the requirements of standing and typicality preclude him
from representing a class seeking that relief.” Id.We reject these five arguments because they misapprehend the circuit court’s
order. As defined by the circuit court, the class simply does not center upon those who are
physically injured or suffered physical damage to property. Instead, the circuit court’s
order centers on geographic areas that were, due to Surnaik’s alleged negligence, exposed
to identified levels of smoke particles, and identifies class members as anyone who resided
in homes or operated businesses in those areas. We have found the mere invasion of
property by dust, smoke, or other noxious elements to be actionable. See Syl. pt. 1, Harless
v. Workman, 145 W. Va. 266, 114 S.E.2d 548 (1960) (permitting recovery of “damages
caused to the plaintiffs’ property by dust resulting from the nearby operation by the
defendant of a coal loading tipple and a coal crusher”); Rinehart v. Stanley Coal Co., 112
W. Va. 82, 163 S.E. 766 (1932) (permitting recovery of damages for “noxious smoke,
fumes, and dust from a burning refuse deposit on the leasehold of defendant”). At this
early stage in the proceedings, the evidence supports the circuit court’s threshold finding
that all properties within the geographically designated isopleths, and any individuals
within those properties, were exposed to levels of smoke particulates at levels sufficient to
cause interference with the use and enjoyment of those properties. The respondent himself
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testified his “house was full of smoke” and that he and his wife needed to wear masks just
to relax in their home. Further, the circuit court concluded that there is evidence to make
a case that enough smoke-borne particulate matter was spread across the Parkersburg area
to increase the chance of physical injuries for a small percentage of people, and to cause
some level of discomfort for a much larger percentage of people. On this record, we find
3
no error in the circuit court’s conclusion that Surnaik’s breach of any applicable duties
owed to the individuals in the class-defined areas presents at least one common question
that predominates over other questions and that the question merits class action resolution.
We likewise find no error in the circuit court’s determination that the respondent, who was
deprived of the enjoyment of his home by transient smoke without his property being
physically damaged, is a typical and proper representative of the class. See Syl. pt. 12, In
re W. Va. Rezulin Litig., 214 W. Va. at 57, 585 S.E.2d at 57 (“A representative party’s
claim or defense is typical if it arises from the same event or practice or course of conduct
that gives rise to the claims of other class members, and if his or her claims are based on
the same legal theory. Rule 23(a)(3) only requires that the class representatives’ claims be
The circuit court discussed the effects of “smoke and particulate matter of
3
3 ug/m of PM2.5,” finding that the evidence of record suggested “those levels of PM2.5
3
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 an unknown but much larger percentage of individuals.” The circuit court concluded
that it was up to the jury to “decide whether these levels of small particulate [exposure] . .
. are sufficient to constitute an interference with the use of enjoyment of property, or
whether higher levels” of exposure to smoke and particulate matter are required which
would then “require a narrowing of the class boundary, thereby denying the claims for
compensation of those outside the boundary.”
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typical of the other class members’ claims, not that the claims be identical.”). Accordingly,
we reject Surnaik’s first, second, third, fifth, and sixth assignments of error.
Surnaik’s fourth assignment of error is identical to its fourth assignment of
error in Surnaik I, that is, “Surnaik alleges that the circuit court erred by certifying a class
whose members are not readily identifiable by reference to objective criteria.” Surnaik I,
244 W. Va. at 256, 852 S.E.2d at 756. Surnaik argues that members must “be identified
with sufficient specificity so that it is administratively feasible for the court to ascertain
whether a particular individual is a member.” Syl. pt. 3, in part, State ex rel. Metro. Life
Ins. Co. v. Starcher, 196 W. Va. 519, 474 S.E.2d 186 (1996). Surnaik contends the circuit
court’s order lacked sufficient specificity to define the individuals within the class.
We reject this argument because the class is clearly defined by a geographical
boundary. It is well-established that Rule 23 permits courts to certify classes defined by
geography. See, e.g., Perrine, 225 W. Va. at 502, 694 S.E.2d at 835 (certifying “a property-
damage class of property owners in a five-by-seven mile area surrounding the smelter site,
and a medical-monitoring class of approximately 8,500 people who had lived in the class
area”); Collins v. Olin Corp., 248 F.R.D. 95, 101 (D. Conn. 2008) (“Many courts have
certified classes defined by geography, as the class here is defined by the contours of the
Newhall neighborhood.”). The court in Cook v. Rockwell International Corporation, 151
F.R.D. 378 (D. Colo. 1993) approved two classes (one for medical monitoring, another for
property losses) defined geographically by lines ringing a weapon production facility that
leaked plutonium. When defining a class, the Cook court said “the class does not have to
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be so ascertainable that every potential member can be identified at the commencement of
the action. If the general outlines of the membership of the class are determinable at the
outset of the litigation, a class will be deemed to exist.” Id. at 382 (cleaned up). Similarly,
the court in Boggs v. Divested Atomic Corporation, 141 F.R.D. 58, 60–61 (S.D. Ohio
1991), approved a class defined “as all persons living within a six-mile radius of the
boundaries of the Portsmouth Plant whose persons or property have been exposed to
radioactive or hazardous wastes released from the plant.” The court approved this class,
in part, because “the class definition does not include the element of actual injury, only
exposure.” Id. at 64. Here, the circuit court order narrowed the class to individuals within
geographically defined isopleths of potential exposure. Accordingly, we find no merit in
Surnaik’s fourth assignment of error.
IV. Conclusion
After consideration of Surnaik’s assignments of error, we find no clear error
as a matter of law in the circuit court’s June 2021 class certification order. Hence, we
cannot say the lower tribunal exceeded its legitimate powers, and we must, therefore, deny
the requested writ of prohibition.
Writ denied.
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