Recently, in State ex rel. American Electric Power v. Swope, the West Virginia Supreme Court ordered the dismissal of a number of mixed dust exposure cases.  Dozens of persons brought claims alleging injuries as a result of being exposed to Coal Combustion Residuals at or via the Gavin Landfill located in Ohio.  Twelve of the plaintiffs were characterized as “non-working direct claimants” which are commonly referred to as “take home” claims.  AEP moved to dismiss these claims on the grounds that Ohio Rev. Code §§2307.84 through .902 declares that premises owners are not liable for alleged off-premises mixed dust exposure claims and, by virtue of lex loci delicti, Ohio substantive law should be applied.  The Mass Litigation Panel (MLP) disagreed and ruled that the public policy of West Virginia precludes application of the foreign law.

The Supreme Court held that the doctrine of lex loci delicti compels the application of the substantive law of Ohio to the “take home” claimants.  The Court further held that the public policy exception to applying a foreign state’s substantive law was invoked in error by the MLP.  Of particular import to the Court were the facts that “none of the twelve…were citizens of West Virginia at the time of their alleged exposures, and none of their exposures occurred in this State.”  The Court went on to state that the claims brought by the “take home” plaintiffs were “exactly the type of forum shopping the rule of lex loci delicti was intended to prevent.”