FILED
November 22, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 21-0095 – State of West Virginia ex rel. West Virginia University Hospitals – East,
Inc., doing business as Berkeley Medical Center; City Hospital, Inc., doing business as
Berkeley Medical Center; and The Charles Town General Hospital, doing business as
Jefferson Medical Center v. The Honorable David M. Hammer, Judge of the Circuit Court
of Jefferson County, and Deborah S. Welch and Eugene A. Roman, individually and on
behalf of all others similarly situated
Justice Hutchison, dissenting, and joined by Justice Wooton:
I dissent because neither the record nor the law support the issuance of a writ
of prohibition.
Because of the proliferation of data breaches, the law is rapidly evolving on
the question of whether plaintiffs, whose data has been stolen, have sufficiently pleaded an
injury-in-fact. As one federal judge noted, “[t]here are only two types of companies left in
the United States, according to data security experts: ‘those that have been hacked and
those that don’t know they’ve been hacked.’” Storm v. Paytime, Inc., 90 F. Supp. 3d 359,
360 (M.D. Pa. 2015).
The majority opinion has done a disservice to the people of West Virginia
and impaired their ability to pursue relief when their data is stolen from a hospital’s
computer system by a hospital employee. The majority opinion’s factual conclusions in
support of their legal conclusions set this State apart from just about every other jurisdiction
in the nation that has addressed the issue of data breaches.
1
First, I am troubled that the majority opinion sidestepped the 1,642-page
record and, instead, cherry-picked a handful of facts “primarily from the circuit court’s
findings of fact contained in its order granting class certification.” 1 The majority opinion
focuses on the notion asserted by West Virginia University Hospitals—East, Inc. (“WVU
Hospitals”), that Angela Roberts (“Angela”) “legitimately accessed” the data of
approximately 7,445 patients in the last 8 months of 2016. Looking at the facts through
the hospital’s rosy lens, the opinion paints a picture of a blameless hospital victimized by
a lone employee.
The majority opinion recites, but then artfully dodges, Angela’s admission
that she looked at every patient’s account with a dual purpose: legitimate work and to steal
data for her boyfriend, Wayne Roberts (“Wayne”). Angela as an employee was an agent
of her master and employer, WVU Hospitals; thus, everything Angela did she did in the
position of the hospital. In her deposition, Angela admitted that the patient files she
“looked at every day were all . . . potential victims.” Angela said that even though she
“looked at everybody’s records for the legitimate purpose, the business purpose,” she was
also “looking at those records at the same time for an illegitimate purpose and that is to
take names and addresses and Social Security numbers for Wayne[.]” When Angela
looked at a patient’s computer record, she always asked herself if the patient “had enough
information on their accounts” and, if so, she would “get their info . . . for Wayne.”
1
___ W.Va. at ___, ___ S.E.2d at ___ (Maj. Op. at 2).
2
By sidestepping the facts as they are in the record, the majority opinion
misses that Angela designed her movements to conceal her criminal activity. Angela was
successful because WVU Hospitals carelessly created and operated a system that permitted
her to steal patient data at will. Angela admitted she did not access patient accounts “willy
nilly,” “this account here, that account there.” Angela said she stole the information from
“accounts that I was legitimately in for whatever reason,” and she did so to avoid raising
suspicion by WVU Hospitals, “[s]o if they saw . . . you would see where I scheduled
something for that patient or a note from me that I, you know, did something on that
account.” Most importantly, Angela never thought she would get caught because “nobody
was watching me closely enough to know that I was doing anything other than my job.”
The hospital’s failure to monitor its employees’ conduct is apparent by the hospital’s
admission it only became aware of the data breach when it learned of the FBI’s
investigation of Angela and Wayne. 2
Simply put: Angela testified that she reviewed patient records with both “a
[legitimate] business and a Wayne’s business . . . need of looking at all that material[.]”
Angela started out looking at each patient’s file with a legitimate purpose; she ended by
scribbling down the patient’s private data or printing out copies of their driver’s license or
Social Security card. She then gave that information to Wayne, knowing he used it for a
2
Angela testified in her deposition that her supervisors never monitored her
work. Angela said, despite working in an open cubicle, that no one was ever looking over
her shoulder. The only time Angela saw or spoke to a supervisor was when Angela left
her cubicle and went to her supervisor’s office.
3
criminal purpose. Every one of the 7,445 people, whose patient records were undisputedly
accessed by Angela, can say their personal data was invaded for a wrongful purpose and
that they were harmed, in part because of Angela’s criminal conduct, but also because
WVU Hospitals did nothing to stop Angela. The record shows that, if the police had not
executed a search warrant on Wayne’s apartment (for a wholly unrelated case) and found
the yellow scraps of paper with Angela’s handwriting of patient data, she never would have
been stopped. Angela testified that WVU Hospital’s management system was so slipshod
that she suspected her other coworkers in nearby cubicles were probably also stealing data,
and that no one would have found out.
Second, even if we accept the majority opinion’s view of the facts as correct,
it does not support its legal conclusion. The majority opinion contends that Angela was
“legitimately” looking at patient files when she took the patient’s private information, and
then draws the conclusion that the patients never suffered an injury-in-fact sufficient to
confer standing to bring a class action suit. I think, if you asked the patients whether they
feel they suffered an “injury” such as embarrassment, fear of identity theft, or the cost of
paying for identity theft protection, they would offer a different answer.
What is more, I think the record supports a finding that patients suffered an
injury-in-fact caused by WVU Hospital’s carelessness. Angela opened up a patient’s file
for a legitimate purpose, but before she closed it, she searched the file to steal the patient’s
identity and WVU Hospitals did nothing to prevent her from doing so. Angela walked out
of the hospital with notes and printouts from patient files which she gave to Wayne so he
4
could engage in various felonies. Let’s be clear: what Angela and Wayne did was sufficient
to warrant a 36-count federal indictment. 3 For instance, the indictment alleged that Wayne
and Angela:
Devised a scheme and artifice to defraud a financial institution,
through which [Wayne] intended to obtain approximately
$8,000 from Wells Fargo.
It was a part of the scheme and artifice that the defendant
Angela . . . would access WVU Medicine University
Healthcare’s patient database to obtain names, dates of birth,
Social Security numbers, addresses, and driver’s license
numbers. . . .
On or about June 27, 2016, in Berkeley County, . . . the
defendants [Wayne] and [Angela] did knowingly execute such
scheme and artifice . . . by accessing WVU Medicine
University Healthcare’s patient database and obtaining the
name, date of birth, Social Security number, address, driver’s
license number, and a copy of [the] driver’s license of the
fourth person known to the Grand Jury and transferring that
information to the defendant [Wayne] who then used that
information to obtain a Wells Fargo Visa Signature Card with
an $8,000 line of credit . . . in the name of the fourth person
known to the Grand Jury[.]
That indictment is pretty clear, and it repeats the same scheme for 35 other counts for
conspiracy to commit identity theft, production of false identity documents (namely Social
Security cards), aggravated identity theft, and bank fraud.
The record contains evidence from Wayne’s plea hearing, and also contains
3
references to Angela’s meetings with her probation officer. However, the record is
otherwise unclear as to what charges Angela and Wayne pleaded guilty to or were
otherwise convicted of.
5
With that federal indictment in mind, juxtapose the criminal case with the
majority opinion. On the one hand, Angela’s actions were so significant, and caused so
much harm to patients at WVU Hospitals, that a federal prosecutor saw fit to pursue a 36-
count indictment and to use the evidence of Angela’s theft of data from the hospital to
support a criminal conviction. On the other hand, on the same evidence, the majority
opinion concludes Angela’s theft of data was “legitimate” and so insignificant that those
same patients did not suffer an “injury in fact” sufficient to file a class action lawsuit for
damages. This conclusion is wrong. The plaintiffs allege WVU Hospitals was careless
with how it managed its patient files, failed to follow basic security procedures like
conducting surveillance of its employees, and failed to encrypt information or otherwise
safeguard files against wrongful activity. Angela took advantage of the hospital’s
carelessness. She stole patient data and gave it to a co-conspirator to commit identity theft.
Something is wrong with our society when our courts say an act can support a criminal
conviction beyond a reasonable doubt yet cannot support a civil claim for damages by a
preponderance of the evidence.
Generally, courts rely on three factors to determine if a plaintiff sufficiently
pleaded an injury-in-fact from the threat of future identity theft. The first factor hinges on
the intention of the third party who gained access to the personal information. Courts are
more likely to find standing where the third party had a criminal motive. The second factor
looks to the type of information stolen; some information (like Social Security numbers,
driver’s licenses, or birthdates) is more useful for identity theft than other information. The
6
third factor turns on whether there is some proof the compromised, personal information
was actually misused. Mitchell J. Surface, Civil Procedure-Article III Cause-in-Fact
Standing: Do Data Breach Victims Have Standing Before Compromised Data Is Misused?,
43 Am. J. Trial Advoc. 503, 506 (2020). 4
Applied to this case, it appears that the plaintiffs can establish an injury in
fact. First, we know from Angela’s deposition and the proceedings in federal court that
Angela trolled through the hospital’s files with the intent of stealing patient data to use in
an identity-theft scheme with Wayne. Second, the information stolen – addresses,
birthdates, Social Security numbers and driver’s licenses – was of great use in Angela’s
4
Another journal summarized the approach taken by federal courts thusly:
Data breach litigation has given rise to new questions, like
whether claims may proceed against hacked companies in the
absence of fraudulent account activity or actual identity theft
affecting those whose information was lost. Courts have
recognized a distinction between cases involving actual fraud
or identity theft – or, at least, signs of a malicious hack – and
cases not involving misuse, as where a thief may have broken
into a car and grabbed a laptop without realizing what it
contained. Plaintiffs in the first category, who suffered
economic loss or were subject to intentional data theft, have
been deemed to have standing to sue the hacked company for
negligence and other alleged violations. In the second
category, plaintiffs whose information was merely exposed,
but never exploited, often find themselves out of luck.
Jordan Elias, Course Correction-Data Breach As Invasion of Privacy, 69 Baylor L. Rev.
574, 575 (2017) (emphasis added).
7
and Wayne’s fraud scheme. And third, the compromised personal information was, in fact,
misused. On this record, the plaintiffs clearly established an injury-in-fact.
The majority opinion has wrongly conflated how the data was stolen with
whether the victims of those thefts were injured. In a run-of-the-mill data breach, financial
information is stolen by an outside “hacker” who engages in fraud or identity theft. This
case is different because there was no outside hacker; here, the hacker actually worked for
the hospital and stole the data one file at a time. However, just because the data was stolen
by someone who legitimately had access to the data does not alter the fact that the plaintiffs
were injured.
In my review of how federal courts handle the injury-in-fact question, every
single appellate circuit court focused on the actual impact of the theft on the victim, not
whether the thief was “authorized” to commit the theft. Further, a majority of federal
circuits have found an injury-in-fact exists where there is a heightened risk of identity theft
subsequent to a data breach. 5 The United States Court of Appeals for the Fourth Circuit
5
The circuits finding an injury in fact arising from a heightened risk of
identity theft subsequent to a data breach include the D.C. Circuit (In re: U.S. Office of
Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 55-56 (D.C. Cir. 2019) (holding that
identity theft constitutes a concrete and particularized injury because the victim is subject
to a substantial risk of future fraud and identity theft); Attias v. Carefirst, Inc., 865 F.3d
620, 629 (D.C. Cir. 2017) (“[A] substantial risk of harm exists already, simply by virtue of
the hack and the nature of the data that the plaintiffs allege was taken.”); Third Circuit (In
re Horizon Healthcare Serv. Inc. Data Breach Litig., 846 F.3d 625, 641 (3d Cir. 2017)
(noting the injury-in-fact requirement is not insurmountable, thus finding a violation of the
Fair Credit Reporting Act by not protecting personal data constituted a clear de facto injury,
and noting unauthorized disclosures of legally protected personal information have long
been seen as injurious); In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 274 (3d
8
has issued two cases on computer data theft demonstrating a proper analysis of the injury-
in-fact question. In Beck v. McDonald, 848 F.3d 262, 267-76 (4th Cir. 2017), the court
Cir. 2016) (“The purported injury here is clearly particularized, as each plaintiff complains
about the disclosure of information relating to his or her online behavior.”); In re Google
Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 134-35 (3d Cir. 2015)
(“Consequently, and contrary to the contentions of the defendants, a plaintiff need not show
actual monetary loss for purposes of injury in fact.”)); Sixth Circuit (Galaria v. Nationwide
Mut. Ins. Co., 663 F. App’x 384, 388 (6th Cir. 2016) (finding injury-in-fact where
plaintiffs’ personal information was stolen but not yet misused because it is likely the
information will be misused)); Seventh Circuit (Dieffenbach v. Barnes & Noble, Inc., 887
F.3d 826, 828 (7th Cir. 2018) (finding injury-in-fact because the victims’ data was stolen
and they had the opportunity to prove damages); Lewert v. P.F. Chang’s China Bistro, Inc.,
819 F.3d 963, 969 (7th Cir. 2016) (finding that some injuries plaintiffs claimed were
enough to find standing); Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688, 696 (7th
Cir. 2015) (“The injuries associated with resolving fraudulent charges and protecting
oneself against future identity theft ... are sufficient to satisfy the first requirement of
Article III standing.”)); Ninth Circuit (In re Zappos.com, Inc., 888 F.3d 1020, 1028-29 (9th
Cir. 2018) (finding injury-in-fact where the plaintiffs alleged a credible threat of real and
immediate harm stemming from the theft of personal information--although Social
Security numbers were not included in the data breach--because there was a substantial
risk the hackers would commit identity fraud or theft); Krottner v. Starbucks Corp., 628
F.3d 1139, 1143 (9th Cir. 2010) (“Were Plaintiffs-Appellants’ allegations more conjectural
or hypothetical ... we would find the threat far less credible.”)); and Eleventh Circuit
(Resnick v. AvMed, Inc., 693 F.3d 1317, 1323 (11th Cir. 2012) (finding injury-in-fact where
defendants’ laptops were stolen containing the plaintiffs’ personal information that was
misused)). But see Whalen v. Michaels Stores, Inc., 689 F. App’x 89, 91 (2d Cir. 2017)
(finding that standing requires a future injury be certainly impending rather than simply
speculative, and that because the plaintiff’s personal identification information--date of
birth or Social Security number--was not stolen and the plaintiff had not expended any time
or effort monitoring her credit, there was no injury or threat of future injury); In re
SuperValu, Inc., 870 F.3d 763, 768 (8th Cir. 2017) (holding plaintiffs’ injury must affect
the plaintiff in a personal and individual way, and that stolen credit card information that
had not yet been misused is too speculative to qualify as a substantial risk of identity theft);
Katz v. Pershing, LLC, 672 F.3d 64, 80 (1st Cir. 2012) (finding no injury-in-fact to satisfy
the Article III standing requirement because plaintiffs’ personal information was not shown
to have actually been stolen, only that the defendant did not have proper security measures
in place to protect the data, increasing their vulnerability to hackers and future identity
fraud).
9
concluded a Veterans Administration hospital laptop, stolen from the backseat of a car,
which contained veterans’ personal information and medical records did not confer injury-
in-fact standing, because the plaintiffs produced no evidence the information had been
accessed or misused. Because the plaintiffs filed the lawsuit three to four years after the
laptop was stolen, the court found no substantial risk that the plaintiffs were going to fall
victim to identity fraud or theft. However, a year later, in Hutton v. National Board of
Examiners in Optometry, Inc., 892 F.3d 613, 622 (4th Cir. 2018), the court distinguished
Beck because the plaintiffs offered evidence that they had already suffered actual harm –
some plaintiffs could show credit cards were fraudulently issued using stolen data – and
found that the evidence supported finding the injury-in-fact requirement had been met.
Ultimately, I think the “majority rule” regarding whether a plaintiff has an
injury-in-fact resulting from data theft can be distilled down to this guide found in Khan v.
Children’s National Health System, 188 F. Supp. 3d 524, 532 (D. Md. 2016):
in the data breach context, plaintiffs have properly alleged an
injury in fact arising from increased risk of identity theft if they
put forth facts that provide either (1) actual examples of the use
of the fruits of the data breach for identity theft, even if
involving other victims; or (2) a clear indication that the data
breach was for the purpose of using the plaintiffs' personal data
to engage in identity fraud.
Applying the Khan rule to this case, the majority opinion should have found that the
plaintiffs properly alleged an injury in fact arising from an increased risk of identity theft.
The plaintiffs put forth evidence of actual examples where the data stolen by Angela was
used to steal the identity of some of the plaintiffs. Moreover, they offered clear evidence
10
their files were examined and their personal data was taken for the purpose of engaging in
identity fraud. Hence, all of the members of the class, including the class representatives,
have properly alleged an injury in fact sufficient to permit the class action to proceed. Thus,
I must conclude the majority erred in holding otherwise.
A third problem with the majority opinion is its focus on named-plaintiff
Deborah Welch’s “standing.” The authorities cited by the majority opinion are pretty clear
that “[i]n class actions, as in all suits in federal court, plaintiffs must have standing in order
to sue.” 1 William B. Rubenstein, Newberg on Class Actions § 2:1 (5th edition 2011)
(emphasis added). The problem with the majority opinion’s reasoning is that this case was
filed in West Virginia state court and not in federal court. The West Virginia Constitution
does not have a standing requirement like that found in Article III of the United States
Constitution. As the leading treatise on class actions says, “the Article III requirements
that apply to cases brought in federal court do not apply in state court.” Id. at n.1. Hence,
I would caution future courts that the majority’s opinion’s holding that “at least one named
plaintiff must have standing with respect to each claim asserted” is built on shifting sands.
That said, the majority opinion concludes that class representative Deborah
Welch does not have standing because she did not prove to the majority that she sustained
a “breach” of her confidential information or an invasion of privacy caused by “an
unreasonable intrusion” upon her seclusion. Syl. pt. 8, Crump v. Beckley Newspapers, Inc.,
173 W. Va. 699, 320 S.E.2d 70 (1983). Angela spent her first 30 seconds “legitimately
accessing” Ms. Welch’s file, but she spent the remainder of the time illegitimately
11
accessing the file. Nevertheless, the majority opinion deems Angela’s entire access to the
file a “reasonable” intrusion. The logical theme of the majority’s opinion is that if you start
to do something with good intentions, then it doesn’t matter what you do later. That’s akin
to finding that, if a nurse walks into a room to administer medicine to a patient but then
walks out of the room with an article of the patient’s property, the patient would have no
claim against the hospital because the nurse was “authorized” by the hospital to be in the
room.
To reach its decision on standing, the majority opinion also weaves and twists
to avoid the holding in Tabata v. Charleston Area Medical Center, 233 W. Va. 512, 759
S.E.2d 459 (2014). There, the hospital accidentally put patient data in a computer file that
could be accessed from the internet. An employee was doing his or her authorized and
legitimate job and just made a mistake. There was no proof anyone saw the data and no
proof anyone used the data for a nefarious purpose. Still, because the patients’ private data
was exposed in a such a way that strangers could access it, this Court said the hospital
could face liability for invading patients’ privacy. In this case, the hospital opened its
patient data up for employees to scroll through in a way that looked legitimate, but the
employee could, at the same time, copy and use the data for an illegitimate, nefarious
purpose. And did. The plaintiffs in Tabata had a cause of action when it was not clear
anyone ever saw or illicitly used the data; here, the plaintiffs can’t pursue a class action
despite someone seeing the data, stealing the data, and using the data to steal patients’
identities. The holdings in Tabata and this case cannot be reconciled.
12
Fourth, the majority opinion avoids discussing the variety of claims asserted
in the plaintiffs’ amended complaint including breach of the duty of confidentiality; unjust
enrichment; negligence; breach of contract; negligent supervision; and violations of the
Consumer Credit and Protection Act. The majority opinion lumps all of these claims into
one and determines that all of them require proof WVU Hospitals permitted a “breach” of
patients’ confidential information by an outsider. Then, having declared that no breach
occurred because Angela’s access was “legitimate,” the majority opinion finds the
plaintiffs cannot support any of these causes of action. However, when we examine each
of these causes of action alone, it becomes clear that the plaintiffs can make out a prima
facie case (which, for purposes of class action status, is far more than is required). For
instance, the plaintiffs allege that WVU Hospitals negligently supervised Angela.
In a claim for negligent supervision it is the employer’s
wrongful act rather than the employee’s wrongful act that is at
issue. The focus is upon whether the employer owed a duty of
care to the plaintiff and breached that duty by allowing an
employee to engage in negligent, reckless, or intentional
tortious conduct.
C.C. v. Harrison Cty. Bd. of Educ., 859 S.E.2d 762, 786 (W. Va. 2021) (Hutchison, J.,
concurring, in part, and dissenting in part) (cleaned up). The evidence of record sets out
sufficient facts that a jury could say that WVU Hospitals had a duty to protect the plaintiffs’
data but breached that duty by allowing Angela, as part of her job, to engage in identity
theft and other tortious conduct. The fact that Angela was, in part, legitimately in every
patient’s file does not vitiate the fact that she eventually searched those files for data to
steal, and that WVU Hospitals failed to stop her from doing so. WVU Hospitals can be
13
liable for negligent supervision despite the fact that Angela acted intentionally, criminally,
or outside the scope of her employment. “[L]iability for negligent supervision arises when
the employer permits an employee to act ‘outside the scope of his employment’ and causes
injury to another.” Id. at 787 (citing Restatement (Second) of Torts § 317 (1965)). The
same analyses apply to the other causes of action in the amended complaint, and on remand
the plaintiffs and circuit court should do precisely that.
Fifth, while the majority opinion finds that Ms. Welch does not have standing
to represent a class action, the opinion fails to acknowledge that Ms. Welch still has
standing to assert her individual claims. Moreover, so can the other 7,445 patients whose
data was improperly accessed. See W. Va. Code § 55-2-18 (tolling any statute of limitation
from date of an order dismissing an action). Because of the majority opinion, she, along
with the thousands of other individuals, can file individual lawsuits that can be grouped
together by the circuit court under West Virginia Rule of Civil Procedure 42 (allowing for
consolidation of actions). WVU Hospitals can pay its lawyers to file answers to 7,445
lawsuits. And, as to damages, if the circuit court concludes the hospital’s conduct was
egregious, a jury can award punitive damages against WVU Hospitals for permitting
Angela to view 7,445 patient files without supervision. See Perrine v. E.I. du Pont de
Nemours & Co., 225 W. Va. 482, 553, 694 S.E.2d 815, 886 (2010) (“[I]t is within the trial
court’s discretion to consider other relevant aggravating and mitigating evidence” when
assessing punitive damages); Syl. pt. 3, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656,
14
413 S.E.2d 897 (1991) (in an award of punitive damages, juries may consider “how long
the defendant continued in his actions” and “how often” similar conduct has occurred).
Sixth, I am perplexed that the majority opinion concludes that Eugene
Roman is not a “typical” representative of the class. The record shows that Mr. Roman is
the perfect representative because he was a direct victim of Angela and Wayne’s scheme.
Earlier in my dissent, I quoted from a 36-count federal indictment charging Angela and
Wayne. The count that I cited, Count 33, identified “the fourth person known to the Grand
Jury” whose personal information was stolen from the hospital and used to open a Wells
Fargo credit card. That “fourth person” is Mr. Roman.
At Wayne’s plea hearing in federal court, an FBI special agent testified that
Count 33 involved Angela improperly accessing Mr. Roman’s data, not once, but twice.
The FBI agent testified to Angela “accessing Mr. Roman’s patient profile at WVU
Medicine in Berkeley County, West Virginia on June 27 and July 26, 2016,” and that
“Angela [did] then provide that information to [Wayne] at some point,” information Wayne
used to illegally apply for a Wells Fargo Credit card in Mr. Roman’s name. Upon
questioning by the federal judge, Wayne agreed that the FBI agent’s testimony was
“substantially correct” and “accurately reflect[ed]” his involvement. Stated simply, the
record in this case shows Angela accessed Mr. Roman’s information, delivered that
information to Wayne, and he used that information to commit fraud and identity theft.
Accordingly, Mr. Roman is the perfect representative for the class.
15
Chief Justice Walker recently said that extraordinary remedies like writs of
prohibition
are reserved for “really extraordinary causes.” 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 or having such
jurisdiction exceeds its legitimate powers.
State ex rel. Vanderra Res., LLC v. Hummel, 242 W. Va. 35, 40, 829 S.E.2d 35, 40 (2019).
She further found that writs of prohibition “are not available in routine circumstances.” Id.
The majority opinion in this case declares that “‘[w]hether the requisites for a class action
exist rests within the sound discretion of the trial court.’ Syllabus Point 5, Mitchem v.
Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981).” 6 Yet, as the majority opinion
demonstrates, this Court is willing to override the discretion of trial courts, in routine
circumstances, to grant a writ of prohibition. I do not believe the majority opinion reflects
a proper use of judicial power.
In summary, I do not believe the record or the law supports the issuance of a
writ of prohibition in this case. I therefore respectfully dissent. Further, I am authorized
to state that Justice Wooton joins in this dissent.
6
___ W.Va. at ___, ___ S.E.2d at ___ (Maj. Op. at 22).
16