good morning may it please the court i'm scott siegel and i represent the appellant's in this matter the standard of review on the motion to dismiss is the nova the standard of review on the denial of the motion to amend is abuse of discretion lawyers and judges for many years have had a zealous belief in seeking the truth supreme court of appeals of west virginia the truth just as much as it is the outer rings of a false hood in making a climb under castle versus leavitt for fraudulent concealment that does not mutate the case to a wrongful death case because the remedy sought is wrongful death and because the legal right which was denied through the fraudulent concealment was the wrongful death remedy and these families were entitled to that remedy and but for the fraudulent concealment which occurred  explosion happened mr siegel except in your statement this is a fraudulent concealment claim could you walk us through why you don't have a statute of limitations problem on the wrong on the project yes i'd be happy to judge king there are three key reasons that i think are very important first is the court i'm sure is where judge healey ruled that the very latest we could have brought this was in two thousand and  think it's and she based that based upon the memorandum by them ok so if you look at that memorandum what you'll notice a chevy never disclosed that he was the person who jumped the alarm system on the monster on fan he didn't disclose that when he told larry lange and larry didn't write it down it was not until set the records whether there was any intimidation involved regarding mr lane when mr lane elected to leave that name out of the memo the only record we concealment klein and the entity is no consolidated cole is known as the entity who employed the wrong door or at least alleged arguably  is employed the wrong do or what about triggering the discovery rule at that point but why wouldn't that be enough under west virginia law or are you saying it's unresolved under west virginia l should certify this to the west virginia supreme court of appeals i am not judge came in the the the issue is was the person who disabled the fame someone who was in management or acting at the behest of management well just is it your claim your principal claim the person the entity with whom you wish to get the money consolidation you know you have a claim against consolidation or at least you think you do is th time you get this you are hopeful that that person is going to be in management but i know your reputation as a fine plaintiff's lawyer i'm not sure i understand why you wouldn't let that play out in discovery about who the person was that actually did this hoping and with a fair degree of confidence hoping that it's going to be a consolidation employee of some sort so that plead the name of the person in management who did the act in order to survive that standard the standard of who what when or where is a matter of federal law you have to do that so you are saying yes one hundred u extra wilson versus brown and root i'm saying that this court requires four circuit requires that you name who what when and where and why in a fraudulent the fraudulent concealment until we could plead that we did not have a cause of action that we could bring before the court you know thing because your theory would be what you don't know whether this was a rogue act or it could have been a consolidated call employee but it could have been somebody who did this without authorization or without direction that would be correct in two thousand and eight when the memo surface we would not have known who that person would have been whether it was a saboteur whether it was a low level employee whether it was a simple electrician or whether it was someone acting under the name but the does that answer the question know why  at least your knowledge it was consolidated didn't trigger the duty didn't trigger the discovery rule for purposes of your investigating that is correct your honor because i have to be able to show under rule  levon that i know who did this and that they were management and therefore i can make the jump at that time to the consolidated coal company and i would be able to do that  in addition is consolidate their diversity here is that with the basis of our jurisdiction yes your honor because we originally we originally named someone else and the state of west virginia refused all the way up to those supreme court to allow us to reopen mr covered barges cofer box he's a stay and because that the stay was not allowed to be reopened diversity existed between the consolidated coal company and the plaintiffs and that's why your honour's have had we been allowed to amend our complaint to include switch that would have then destroyed diversity and we would have been to be able to prove whether we're using the fraudulent concealment standard or even if we want to do use as judge kili did the wrongful death statute and if you used i'm sorry to interrupt you know and i think on the wrongful death standard then limitations would have run then your whole argument about how you can't plead because you could have pled in on an unknown person you could you could have sued consolidated right where i could not your honor because in order to get around the statute of limitations on a wrongful death case based upon vote miller vs were mero i would have to demonstrate that there was actual evidence of fraud misrepresentation or concealment of material facts what material facts was i aware that consolidation coal company withheld from these family well you have the reported this time pardon me you have the report this time i have a report that says that when they re energized the line two years after this explosion the electrician doing that  believe the fam call a long arm had been jumped at the man's run for i had that but what i didn't have was the piece that someone did that before the explosion that killed these men i didn't have that piece of evidence to bring before your arms and so as a result of that i didn't have what i needed to prove the fraud that was committed way back when miss one mr cobb of our check testified and that's in the record here in you know what caused that mining to blow up you have a duty to these families to tell them this is what caused the loss of life was the evidence that we do have that that's that's what caused it was how does this record when asked lie was that was the question and what was the lie the question in the record what was the question what was the line ok generally speaking the questions were what caused the mind are not generally speaking what is the record say as to because that's the because we did ultimately discover exactly what happened and who the people were they cost a tappan and now that hasn't that would go into the question of the wrongful death action i'm talking about the fraudulent concealment that that element of it what do you know it was but i haven't been able to even discover any of that yet in this record and this is all twelve b motions i have not been allowed to do the necessary discovery don't you have to at least plead that when asked this question they live it as to this fact it's all you says that he didn't disclose right and what i'm saying what i'm saying to chief justice gregory what i'm saying is if you own a man right and you have an chief electrician who works for management and they know they did something that caused an explosion they have an affirmative duty to reveal that as to what they did that caused this explosion you're saying they don't have a right to withhold this information just because the most precise question it could have been asked was an ass correct otherwise you don't you know put in perspective defenders don't have to give prospective players their whole case right you know you have to say ok let me to exactly how this would say what i did wrong i mean that's what being sued in discovery is what is the all those cases clearly whole and many of them are discussed in cash so you can't withhold information in order to destroy another room in beings legal rights when you have a duty to them their husbands and fathers to protect them while they were underground and you didn't do it and so you just shut up about you can't do that under castle versus last but it's not allow that there's a cause of action for  whether there is a cause of action for fraudulent concealment when the measure of damages is wrongful death is not correct that is correct lot on a wrongful death action so my question to you is why wouldn't we benefit from having the west virginia supreme court of appeals answer that said despite the lack of president recognizing a claim based in tort and sounding in fraud in circumstances fully analogous to the this ruling the instant appeal this  has never extended the notion of a fraudulent concealment claim to situations where the predicate is wrongful death we ask that whether there is a cause of action seems to me that rather than have a guess it would make a lot of sense to since it is west virginia law it's their common law there aren't they best suited to do that if that is the question yes your honor i would agree that they are best suited the point that i would make is even if it does extend to a common law fraud of concealment the statute of limitations as judge healy clearly  has run all of the facts necessary and mr siegel indicated that without the name of the particular individual he could not make a claim for fraudulent concealment against cons complaint mr siegel alleges some ten to twelve separate claims of fraudulent concealment only one of which relates to the identity of mr yes but his i took his argument to be he couldn't file any claim against console and he studied some case with with which i was not familiar but which i will get familiar with in which he said that we held that because of the particularities and fraud requirements that you had to know who actually committed the fraud within the organization your honor i think that once you look at that case you'll find th vastly over reading that case in the maquis you think that case holds i think the case holes that once you establish a duty on the part of consult to operate the mine and us stablish that that duty was breached and injuries resulted from that and that as they allege certain serial facts relevant to that claim assuming we can extend it to a wrongful death claim occurred that that is sufficient  fan safety system is bypassed are rendered inoperable and that the fan that ventilates the mine and i should correct the record i don't think there's anything in the record that shows that in fact fan was not operating at the time of the explosion the only thing we know for sure is that the mine the fan safety system had been overridden so that if it stopped running an alarm would sound but that point aside i'm sorry they're also alleging that the safety chart was removed aren't they from the mind immediately after they are oh it's not a safety oh unfair it's a chart which shows the cycling of the fan as i understand it now i'm not a mining engineer so so get to the end of your sentence i'm trying to remember where where most guns was but i was interested in the end but that i  i would make your honor is it really doesn't matter if our duty was to run run this mine in a safe and proper man i think what you would do you would talk about the switch all we know is that the switch that would over it because it was an important point now do you remember when you were talking about is that when i saw about the fan was running we know about the overrun it's with us i think the question was winter weather we had to specifically know the person but that yes bypass the system and my point is and i hate to be arguing basically what the plaintiffs could or would argue is that we have a duty not to operate that mine and last all of our safety systems were in fact functioning well that's what i would have thought too but i thought in response to my question your colleague on the other side says well and this assumes for purposes here that this is correct this is just a fraudulent concealment claim and so the standard is more specific than it would be in a regular cause of action because certainly if any other you know there are all kinds of clauses actions that are brought when you don't know who the guilty party is with in the corporation or organization and you bring him  you say i'm just you say that in your complaint you get discovery but i say it seemed to me your colleague was saying well but no were be wringing this claim based on fraud and therefore the be clean cr responsible is not a question of west virginia law as to that specific question your honor it would be certainly a question of west virginia law and if that was what was required to be pled which we contend we need to know that and it seems to me you're asking us to predict west virginia supreme court of appeals would say knowledge of the entity is enough to trigger the discovery and i get it sort of comes back to my question why don't we ask then they give us the answer and then we decide the case well i think it would reach two questions your honor first the question as you oppose it in secondly whether that cause of action basically supersedes  claim of arising under the wrongful doubts that you yeah so it's really two questions i think the first question has largely been answered by this line of cases cited by judge healey but to go back to my point with respect to rule nine rule nine simply requires that the circumstances constituting the fraud he pled in a manner sufficient to provide the defendant with reasonable notice of the nature of the claims against them and that comes from a west virginia supreme court case pocahontas versus oxy usa now and this situation they have alleged  ten instances of wrongful concealment they have alleged then one final concealment and that is that mr covert archer was the person who rendered the mine safety operable with all due respect i do not believe that west virginia law or the law of any jurisdiction would require and this situation in order to state a claim for fraudulent concealment every act of concealment be planned or that this particular name be pled in essence what we have here and we believe it would render a statute of limitations  meaningless to stay you can go out and search for additional facts in support of your claim for fraudulent concealment and each time you find one of those facts it resets the running of the statute of limitations in this case is judge healy clearly stated and we think she was absolutely correct the statute of limitations began to run when they had sufficient facts in their possession to allow them to make a claim for fraudulent concealment or wrongful death and if you look at the complaint there are thirty nine factual allegations that they make as to what they knew and what they didn't know with respect to their claims only one and that is in paragraph forty did they learn after two thousand and eight they had everything else in two thousand and eight we believe the judge limitations to run don't they have a problem with holding meetings took place way back in the day so even if it was timely i could have told the action  actually against the injury that took place placed me back in the day and i understand there were subsequent lawsuits there's cause of action as as we understand the fraud claim would arise or be mature when they learned all of the facts necessary to state a claim for fraudulent concealment so you don't make any tolling claims which you say i'm not well the tolling would apply to the west virginia wrongful death statute well that's with it where they have their money on their wrongful death i understand that and certainly it was judge here this position and we believe she's absolutely correct based on the law that in  sixty eight when these deaths occur the statute required that those claims be brought within two years of that death and that was an inflexible time and was not subject to being told or otherwise extended now subsequent to that some twenty to thirty years later the west virginia supreme court revisited those issues and apply them but if they ever retroactively applied they have not and even if they did your honor under that would be the sort of talking about bradshaw were at show and then in the case prior to that we don't believe what if they what if we certified this then this case would be pending at the time it would have been pending in two thousand and one no but they could if they decided to make a retroactivity rule they could make it well if they decide to do that your honor then yes taking it would open up a whole can of worms a whole bunch of other cases well for say every every litigant who had a wrongful death claim back to women be able to revive those claims on the basis that retroactively on the  is discovery the discovery every rule so that you know if it would open a can of i don't know that one would call them worms but it certainly would make for some interesting and one other point that that i would make with respect to that if in fact it was critical to allege that it was an employee or an individual this court has said in the west virginia authorities concur with this if a real person you sees me for just a moment if you do not know the name of a real person but that name is likely to be discovered and certainly in this case given mr lane statements it would have been discovered his deposition would have been taken you can substitute a john doe but i thought that the response from your colleague was you can't do that when you have fraud your honor i had or an allegation of fraud i did that is that that carries rule nine farther than them i think any court has i just quoted back to you that where the person you know a person you know a person in management or you know an employee is likely to have a course he maintains that he don't know from the report that it is a person in management or rarely if ever during an operating shift find their way into the operations of the mine that just does not not happen so it's reasonable under rule eleven appellants reply brief in support of that concept specifically said the statute of limitations are not mere technicalities rather there are they have a long and respected role as fundamental to the well ordered justice system this court acknowledge that there's a tension between the goals of statute of limitations and the ends of justice and certainly the pla fs in this case as plaintiffs in other cases who find their claims barred by the statue of limitations may feel that is unfair but our legislature in weighing the tensions between those two goals in these cases has said two years is the period once your action accrues within which the statute within which your claim must be filed that did not happen here and crow that recent claims are part of it but still you have the discovery rule coming into play under west virginia law and in your exposition of the law at this just then ignores the operation of the discovery rule there is no i don't believe so your honor because the operative question is when did the cause of action or rob and then it comes back to the question did they need to know the identity of the made please the court judgments united states x well wilson the kellogg brown and root decided by the four circuit may sixteenth two thousand and eight were in the court held we finally agreed with the district court that realtors third amended complaint does not plead for awd with the particularity required by federal rules of civil procedure nine b to meet this standard n f c a plain of and a minimum described the time place and contents of the false representation as well as the identity of the person making the misrepresentation and what he obtained there by citing the harrison case and then adding these facts are often referred to as the who what when where and how of the alleged fraud mr steger yes that case involved the situation that we have where you have a hostile agent of a wrongdoer and the wrongdoer itself in other words were there to to cause you you have your principal defendant here undoubtedly  consolidation yes ron yes strangely that case involved the same situation i will i will read the case for sure but i mean you obviously are intimately familiar with it and so it also involved a corporation or other entity if that person was known and that was pled against that person but there was another person who worked for or was an agent of the first defendant yes that it was the same situation ok yes now it was a different type of client i mean it was the federal government saying you did something bad under our contract to build something for us but yes the analysis is as you pointed out  is that whole that is what the fine i just didn't want to because you know sometimes not with you i'm sure but sometimes in oral argument we get a representation then you go back and read the case and it isn't quite what we had and what i had discovery rule in west virginia with the federal fraud leading fireman's don't we have a question in front of us whether the discovery rule is triggered when you know the entity the discovery rule in west virginia not federal reading is that triggered when you know the identity consolidation call but not the identity of the individual wrongdoing isn't that a separate question that we have to answer and it seems to me that you're just rushing into the fraud pleading requirements but before you can have any relief under that you have got across over the hurdle whether the discovery rule was triggered when you knew consolidation and aging of consolidation may have done it or were you intitled to rely on the discovery rule not being triggered as a matter of west virginia law because you did not  that the person who did the act i was being supervised by or instructed by consolidated a call i'm talking about triggering the discovery world not your pleading requirement i am to ok because i can't legally sue them unless it was someone in management that perform the act you're saying the discovery rule is not triggered because an employee virginia law do we have that we can rely on for your proposition that the discovery world was not triggered of consolidation as opposed to knowledge of the individual because they had a duty to disclose at the time they discovered what happened to these families they have and in answer to judge gregory's question the word is a relationship when you send these men underground you have a duty to their families and to them to protect them you know i'm very i understand what you're saying there i guess what maybe i'm trying to that that discovery doesn't apply only to the commercial context that it applies to torts because of doesn't say when the discovery rule is triggered in less you can point me in the port of the castle tex and this comes back to me to my point i guess i don't understand why you don't want us to send this to the west or to get their reading on west virginia law before we decide this case so we don't make a mistake trying to do that that's what i'm concerned about this is i agree with you this is a very very serious issue and why do you want us to guess rather than to get any answer from the west virginia or may i answer you're on i don't want you to guess and if you feel that why understand i just think the law that we've cited within our briefs is sufficient to allow you not to guess but to answer the question i believe that's the case i actually question eight that you are on notice do you think any of this government has them discovery has but when you should've gone forward if you had enough information that an employee of consolidated was involved but not knowing who it was do you think the discovery would say you then the clock started now because they were not a member of management and they were not told to do it by management no noms not you had information that whomever was was employed by consolidate is otherwise someone here something i don't know exactly was but i know that that person had to be a consolidate employee do you think that would trigger discovery know your own so you have to know name rank and serial number yes r someone who is in another words if an employee just does something and they're not being told to do it supervised and doing it or abated abetted in doing it then how do i make the company liable for that th for you know all of you please but enough that you should be able to go forward right correct but under nine b i have a duty to say more than just that and i had to comply with that duty as well well you know  like i thank you very successfully represent a lot of plaintiffs and this is an odd argument for you to make because i bet wore off and not your filing complaints which the other side is saying you know it's not sufficient or there's some problem with it and here you are saying there would be a problem with filing the complaint then it just i mean usually one of the things that we get we currently is whether the complaint is the fish whether it has the a cause of action about something or other and you know the federal rules talk about liberal interpretations and i hear all your arguments but just not sure i would have thought you would have been braced the idea right about forty minutes ago when you when judge keenan first raised the question you didn't embrace it then and because your honor i believe that the castle case and the briefing that we have provided provides the guidance to answer that question if however the court is uncomfortable with that obviously it's oh it's fine if that's the way the court wants to go i was just saying i think the briefing and castle cop covers thank you all