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
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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
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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
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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
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(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
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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
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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
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ATTEST
TAMARA CHARLES
Clerk of the Court
BY 6 % £A—~
urt Clerk 111