This case returned on appeal to the West Virginia Supreme Court (see 2004 Decisions for earlier summary). The NAM joined with other groups on 8/13/07 urging the West Virginia Supreme Court to strike down a trial court plan that requires a determination of punitive damages liability and a punitive damages multiplier before certification of a medical monitoring class, before a full determination of the defendants' liability for medical monitoring, and before any medical monitoring damages have been determined.
The case involves alleged exposure to polyacrylamide, which is used in to treat coal wash water at coal preparation plants. We argued that punitive damages must be based on actual damages, and cannot be determined in a vacuum before actual damages are determined. The trial court had not yet determined who should be in the class of plaintiffs, let alone whether any of them was actually harmed by the plaintiffs or how reprehensible the challenged conduct was to those plaintiffs. Setting punitive damages without making such determinations biases the jury, arbitrarily imposes punishment, and jeopardizes the right to receive a fair trial in West Virginia.
The NAM joined with the West Virginia Roundtable, the West Virginia Manufacturers Association, the U.S. Chamber of Commerce and the American Chemistry Council in the brief.
On Nov. 15, the West Virginia Supreme Court of Appeals denied the appeal. It ruled that determining the constitutionality of punitive damages requires that it wait until the lower court actually enters a judgment awarding punitive damages. It also indicated its reluctance to intervene in pre-trial issues.