IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

february 16, 2022 04:13 PM
SxX-2006-CV¥-00231

TAMARA CHARLES IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
CLERK OF THE COURT DIVISION OF ST. CROIX

KADAR MOHANSINGH,
Case No. $X-2006-CV-00231

Plaintiff, Complex Litigation Division
Vv.
(Grouped under $X-15-MC-198)
HESS CORPORATION, HESS OIL
VIRGIN ISLANDS CORPORATION
and LITWIN CORPORATION,

Defendants.

Cite as: 
2022 VI Super 23U

MEMORANDUM OPINION
(Filed February 16, 2022)

Andrews, Jr., Judge
INTRODUCTION
f1 This Court recently granted Plaintiff's request for an expedited trial date
based upon a newly enacted preferential trial statute designed to benefit senior
plaintiffs in civilcases. Defendants now move the Court to stay the trial and certify
certain constitutional questions (pertaining to the legality of the_preference statute)
for interlocutory appeal. Plaintiff opposes the request for stay. For the reasons
mentioned below, this Court concludes that the prerequisites for certification of an

interlocutory appeal are not present and will thus deny Defendants’ motion.
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PROCEDURAL BACKGROUND
2 On January 14, 2022, this Court granted plaintiff Kadar Mohansingh’s
Motion for a Preferential Trial Date, pursuant to 5 V.I. § 31(b)(4), and set trial for
March 21, 2022. On February 1, 2022, defendants Hess Corporation and Hess
Oil Virgin Islands Corporation (collectively Hess) filed a Motion to Stay the Trial
and Certify Questions of Law for Interlocutory Appeal relative to the ruling issued
on January 14, 2022. Mot. to Stay and Certify. Defendant Litwin Corporation
joined Hess’ motion on February 3, 2022. Joinder in Mot. to Stay and Certify. On
February 2, 2022, all parties filed a Joint Motion to Continue Trial. Joint Mot. to
Continue Trial. As a result, trial is now set for April 20, 2022. Plaintiff opposed
the Motion to Stay anc Certify Questions of law for Interlocutory Appeal on
February 10, 2022. Defendant's filed their reply on February 14, 2022.
APPLICABLE LAW

{3 Defendants move this Court to stay trial, now set for April 20, 2022, and
certify certain constitutional questions for interlocutory appeal pursuant to Section
33(c) of Title 4, Virgin Islands Code. That statute provides

(c) Whenever the Superior Court judge, in making a civil action or

order not otherwise appealable under this section, is of the opinion

that the order involves a controlling question of law as to which there

is substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termination
of litigation, the judge shall so state in the order. The Supreme Court
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of the Virgin Islands may thereupon, in its discretion, permit an appeal

to be taken from the order, if application is made to it within ten days
after the entry of the order; except that application for an appeal
hereunder may not stay proceedings, in the Superior Court unless the
Superior Court judge or the Supreme Court or a justice-thereof orders——
a stay of the proceedings.

4 V1.C. § 33(c). The statute “grants full authority to the trial judge to issue an
opinion” certifying questions for interlocutory appeal when the judge determines

that the prerequisites are met. In re Le Blanc, 49 V.1. 508, 523 (V.1. 2008). Absent

the issuance of a favorable opinion, “a civil interlocutory appeal cannot ensue.” Id.
(stating “No litigant has a right to be heard on whether the trial court should enter
an order for interlocutory appeal, because such an appeal is dependent on the trial
judge's opinion). This Court notes that piecemeal litigation, as is inherent in

interlocutory appeals, is disfavored. As stated in Davis v. Am. Youth Soccer Org.,

At the outset, it must be noted that the statutory framework of title-4,__
Section 33(c), Virgin Islands Code enforces a sound judicial policy
which strongly disfavors piecemeal appeals. The purpose of this
policy is to avoid the delay inherent in permitting immediate review of

all interlocutory orders, and the havoc that practice would inflict upon
the trial process. In light of this policy and its purposes, Section 33(c)
should be strictly construed.

2016 VI. LEXIS 262, No. ST-09-CV-70 at * 2-3, May 19, 2016 (Super. Ct. 2016).
"4 To warrant certification for interlocutory appeal the court must be of the
opinion that three criteria exist: 1) the order must involve a controlling question of

law; 2) there must be substantial ground for a difference of opinion on the question:
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and 3) an immediate appeal from the court’s order may materially advance the
ultimate termination of litigation. 4 V.IL.C. § 33(c). All three (3Y criteria mustbe met

for certification to tssue. Arvidson v. Buchar, 72 V./. 50, 68 (Super. Ct. 2019).

qJ5 <A question of law is controlling !f reversal would terminate or otherwise

materially affect the outcome of the litigation. Chitolie v. Bank of Nova Scotia, 62

V.1. 85, 88 (Super. Ct. 2015), citing Charlesweill v. Chase Manhattan Bank, NA.,

2/
77 F.R.D. 277
, 284 (D.V1. 2011); in re City of Memphis, 
293 F.3d 345, 351
 (6!

Cir. 2002) (stating “A legal issue is controlling if it could materially affect the
outcome of the case.”). Even where the question is one of first impression, that

does not ipso facto make it a controlling one. Buchar, 72 V.|. at 69 citing Diaz v.

Pueblo Int'l, Inc., 23 V.1. 382, 384 (Super. Ct. 1988). Any question of law

contained in an order, which if deemed erroneous would constitute reversible error

on final appeal, is a controlling question. Katz v. Carte Blanche Corp., 
496 F.2d

747, 755
 (3d Cir. 1974).

"6 Asubstantial ground for difference of opinion exists where reasonable jurists
“may” disagree (i.e. they might reach contradictory conclusions). In re Trump, 
874
F.3d 948, 952
 (6 Cir. 2017). An interlocutory appeal materially advances
termination of the litigation if it dispenses with the need for a trial, narrows, or

eliminates complex, issues; or simplifies, or reduces the expense of,
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discovery. L.R. v. Manheim Twp. Sch. Dist., 
540 F. Supp. 2d 603, 613
 (E.D. Pa.

2008). With these principles in mind, the Court determines Defendants’ Motion
for Stay and Certification.

LEGAL ANALYSIS
97 Defendants seek certification of two issues:

1) whether the preference statute, 5 V.I.C. § 31(b)(4), is a procedural or
substantive law; and if procedural

2) whether the preference statute is inconsistent with V.I. R. Civ. P. Rule
16 and Rules 92-96 and thus unconstitutional.

Mot. to Stay and Certify, p 1. These questions would be certifiable if this Court is
of the opinion that they are controlling questions of law as to which there is
substantial ground for a difference of opinion and that an immediate appeal may
materially advance the ultimate termination of this titigation. 4 V.I.C. § 33{c). As

explained below, the Court holds no such opinion.

1) The Questions Posited by Defendants Are Not Controlling Questions of Law.

78 Defendant argues that the posited questions are controlling because they
involve pure questions of law rather than the application of legal standards to
facts. Mot. to Stay and Certify, p 4. The Court concedes that the questions are
indeed “questions of law.” However, such classification is only part of the

analysis. The questions of law must also be “controlling.” They are not.
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9 Reversal of this Court’s order, which granted Plaintiff a preferential trial date,
would not terminate or otherwise materially affect the outcome of the litigation.
Chitolie, 62 V.l. at 88. It would have zero impact on subsequent court
proceedings in this matter. It will not terminate nor determine the future course of
the litigation. It will not conserve resources nor narrow issues, as a new trial date
would still have to be scheduled. The trial will still proceed, albeit later; and the
parties would still have to prepare for it. Further, even if this Court's order is
deemed erroneous, such error would not constitute reversible error as the issue is
totally unrelated to the merits of the case. At best, the error would be harmless if
not a moot point. Aithough the question is one of first impression, that fact alone
is insufficient to classify the question as controlling. Arvidson, 72 V.i. at 69. For
these reasons, this Court is of the opinion that the two questions posited by
Defendants are not controlling questions.

2) Defendants Have Not Established Substantial Ground for a Difference of
Opinion.

qi0 In support of their Argument that substantial ground for a difference of
opinion exists regarding the posited issues, Defendants argue that the preference
statute governs trial management and scheduling as do Rules 16 and 92 through

96. There is uncertainty, they claim, as to which authority controls “in the event

of a conflict.” Mot. to Stay and Certify, p 5. This scenario, they conclude,
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establishes substantial ground for a difference of opinion. Defendants’ analysis
is inapplicable to the issue at hand. The issue is not which authority would control
“in the event of a conflict.” It is whether a conflict exists between the statute and
courtrules. More precisely, the issue is whether there is substantial ground for a
difference of opinion regarding the existence of a conflict. This Court concluded
no conflict exists. No Virgin Islands court has issued a contrary opinion. Which
authority controls in the event of a conflict is an easy question already ruled upon
by the Virgin islands Supreme Court. If the statute is procedural the court rules

control. World Fresh Markets, LLC v. Palermo, 74 V.1. 455, 461 (V.1. 2021). If itis

substantive, the statute controls. ld. Defendants’ argument misses this point.

4/11 Defendants further argue that there is a difference of opinion outside the
Virgin Islands as to whether similar preference statutes are substantive or
procedural. Mot. to Stay and Certify, p 6. In support of this position, they cite to
two cases involving similar statutes in California and Illinois. The California court

found their statute to be substantive. Rice v. Superior Court, 
136 Cal. App. 3d 87,

93
 (Cal. App. 1982). The Illinois court found their preference statute to be

procedural but not in conflict with their rules. Davidson v. Davidson, 
243 Ill. App.

3d 537, 538-39
 (Ill. App. 1993). Both courts, however, applied their respective

preference statutes and did not find them unconstitutional. In sum, they both
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support this Court’s ultimate conclusion that the Virgin Islands Preference Statute
is not unconstitutional. As such, their differing conclusions do not establish that
“substantial” grounds exist for a difference of opinion.

3) An Immediate Appeal Will Not Materially Advance the Ultimate Termination
of the Litigation.

{12 Defendants advance several arguments in attempt to convince the court that

an immediate appeal will advance the ultimate termination of the litigation. None

are persuasive.

13 Defendants claim “final resolution of the posited questions will avoid
hardship in trial preparation, result in cost savings for the parties and facilitate the
parties’ ability to negotiate a just and fair settlement based on the merits of the
case.” Mot. to Stay and Certify, p 8. They claim that critical discovery is
outstanding and must be completed before fair settlement evaluation or trial on the
merits can occur. This argument does not establish that an immediate appeal
may materially advance the ultimate termination of the litigation. It is an argument
that may support a motion for continuance, which the Court has already granted
pursuant to the statute. The existence of outstanding discovery does nothing to
support a conclusion that completion thereof will likely lead to settlement, avoid
hardship in trial preparation, nor result in cost savings. If that was so, outstanding

discovery will always suffice to meet the third prong for determining interlocutory
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appeals. It does not, however,

914 Defendants next argue that failure to address the posited questions “will
potentially cause hardship on the parties’ both in trial preparation and not knowing
if the case will be dismissed on dispositive motions and/or knowing if Defendants
can reliably and sufficiently test the evidence of disease causation, of which both
of the latter will change Defendants’ trial approach.” Mot. to Stay and Certifyp9.
This argument fails to address the relevant issue of advancing the termination of
the litigation. It also does not explain how denial of an interlocutory appeal will
cause hardship. Denial of the appeal will not preclude knowledge of the court’s
decision on the “yet to be filed dispositive motions.” To the contrary, denial of a
stay and appeal will allow this Court to proceed with ruling on any dispositive
motions that Defendants imply will be filed. Thus, the link between dispositive
motions and materially advancing the litigation is nonexistent.

915 Defendants next suggest that this Court should consider that “a ruling on
this issue would also have a significant impact on other cases pending before the

Superior Court, particularly in the complex litigation division.” Mot. to Stay and

Certify, p 10. They argue that an interlocutory appeal will “create clarity in the
law.” Reply, p 2. The simple response to this is that the impact of a Supreme

Court ruling on unrelated cases is irrelevant as the standard requires that the ruling
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materially advance the ultimate termination of the “instant” litigation. Further,
there is no ambiguity in law respecting the Virgin Islands Preference Statute that
requires clarity. —= —————

(16 As explained above, an interlocutory appeal materially advances termination
of the litigation if it dispenses with the need for a trial, narrows, or eliminates
complex, issues; or simplifies, or reduces the expense of, discovery. L.R. v.

Manheim Twp. Sch. Dist., 
540 F. Supp. 2d 603, 613
 (E.D. Pa. 2008). Under the

circumstances here, it is difficult to fathom how an interlocutory appeal
accomplishes any of these. Granting an interlocutory appeal would be pointless
in this case without granting a concomitant stay of further proceedings. It would
defy logic to proceed with a trial while the very commencement thereof is being

challenged on appeai. An appeal and stay, at this juncture (i.e. with trial 9 weeks

away), would further perpetuate the verify harm the Legislature sought to avoid
through passage of the preferential trial date; and deprive Plaintiff of the verify
benefit he sought to achieve. Defendant counters that the potential harm to
Plaintiff is not a factor since, according to actuarial tables, Plaintiff's life expectancy
is approximately 10 years. Mot to Stay and Certify appeal, p 9. The Virgin Islands
Legistature, however, has already determined that the age at which the benefit of

a preferential trial ripens is 70 years. It is not for this Court to second guess their
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determination. The stark reality is that an appeal and stay will engender yet more
delay through postponement of the trial date. Such delay is the antithesis of
advancing litigation. Under these circumstances certification of an interlocutory
appeal and stay of trial does not serve the best interest of justice.
CONCLUSION

917 This Court concludes that the questions posited by Defendants are not
controlling questions of law as to which there is substantial ground for a difference
of opinion. Further, an immediate appeal from this Court’s order granting
Plaintiff's request for trial preference will not materially advance the ultimate
termination of this litigation. To the contrary, it will materially impede the ultimate

termination thereof. Accordingly, the Court will deny Defendants’ Motion to Stay

and Certify Interlocutory Appeal. An order consistent herewith will be entered

contemporaneously.
ALPHONSO G. ANDREWS, JR.
Superior Court Judge
ATTEST:
TAMARA CHARLES
Un eo
COURT CLERK

02/16/2022