IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

FILED 

January 2015 Term April 9, 2015 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 14-0766 OF WEST VIRGINIA 

STATE OF WEST VIRGINIA ex rel. FORD MOTOR COMPANY; JACK GARRETT
 

FORD, INC., a West Virginia Corporation; and DOES 1-50 INCLUSIVE,
 

Petitioners
 

v. 

THE HONORABLE DAVID W. NIBERT, Judge of the Circuit Court of Roane County;
 

and CHRISTIE SIEGEL, Individually and as Successor-In-Interest to the Estate of Jordan
 

Siegel and Ashley Siegel, deceased; MARC SIEGEL, Individually and as Successor-In-


Interest to the Estate of Jordan Siegel and Ashley Siegel, deceased; DAWN SIEGEL, an
 

Individual; ERICA FOX, an individual; CHRISTOPHER FOX, an individual;
 

BROOKLYN SIEGEL, by and through her Guardian MARC SIEGEL; and MADISON
 

OWENS, by and through her Guardian, DAWN SIEGEL,
 

Respondents
 

Petition for Writ of Prohibition
 

WRIT GRANTED AS MOULDED
 

Submitted: January 14, 2015
 

Filed: April 9, 2015
 

Gregory G. Garre, Esq. T. Keith Gould, Esq. 

Michael E. Bern, Esq. The Miley Legal Group 

Latham & Watkins LLP Clarksburg, West Virginia 

Washington, District of Columbia Counsel for the Respondents 

Christie Siegel, the Estate of 
 

 

 

 

 

 

 

 

 

 

Michael Bonasso, Esq. Jordan Siegel and Ashley Siegel, 

William Hanna, Esq. Marc Siegel, Dawn Siegel, Erica 

Bradley J. Schmalzer, Esq. Fox, Christopher Fox, Brooklyn 

Flaherty Sensabaugh Bonasso, PLLC Siegel and Madison Owens 

Charleston, West Virginia 

Counsel for the Petitioners Ford 

Motor Company and Jack Garrett Ford 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
 

JUSTICE BENJAMIN and JUSTICE LOUGHRY dissent and reserve the right to file
 

separate opinions.
 

JUSTICE KETCHUM concurs and reserves the right to file a separate opinion.
 

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SYLLABUS BY THE COURT
 

1. “‘Prohibition will lie to prohibit a judge from exceeding his legitimate 

powers.’ Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W. Va. 30, 239 S.E.2d 660 

(1977).” Syl. Pt. 1, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 

(2011). 

2. “By using the term “shall,” the Legislature has mandated that courts 

must consider the eight factors enumerated in West Virginia Code § 56-1-1a (Supp.2010), 

as a means of determining whether, in the interest of justice and for the convenience of the 

parties, a claim or action should be stayed or dismissed on the basis of forum non 

conveniens.” Syl. Pt. 5, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 

(2011). 

3. “In all decisions on motions made pursuant to West Virginia Code § 56­

1-1a (Supp.2010), courts must state findings of fact and conclusions of law as to each of the 

eight factors listed for consideration under subsection (a) of that statute.” Syl. Pt. 6, State ex 

rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 (2011). 

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Workman, Chief Justice: 

This original jurisdiction action is before the Court upon a petition for writ of 

prohibition brought by Ford Motor Company (“Ford”) and Jack Garrett Ford, Inc., (both 

entities referred to collectively as “the Petitioners”) seeking to prohibit the Honorable David 

W. Nibert, Judge of the Circuit Court of Roane County, West Virginia, from taking any 

further action in the case below and from denying the Petitioners’ motion to dismiss the case 

based upon forum non conveniens. Having considered the parties’ briefs and arguments and 

the appendix record, we find that the circuit court failed to make findings of fact and 

conclusions of law as required by West Virginia Code § 56-1-1a (2012). Therefore, the 

Court grants the writ as moulded and remands the case for further action consistent with this 

opinion. 

I. Factual and Procedural Background 

According to the allegations in the Complaint, in 1999, Jack Garrett Ford, Inc., 

sold a 1999 model Ford Expedition to an unidentified individual from the dealership located 

in Spencer, West Virginia. The vehicle was designed by Ford in Dearborn, Michigan, and 

manufactured by Ford in Wayne, Michigan.1 Moreover, Ford has its principal place of 

business in Michigan. In 2006, years after the initial sale, the Expedition was sold to a 

1

It is significant that Jack Garrett Ford, Inc., has consented to jurisdiction in Michigan. 

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Michigan resident not identified in the litigation. Approximately two years later, in 2008, 

the vehicle again was sold in the State of Michigan by a Michigan resident to the 

Respondents,2 who were the plaintiffs below 3 and also Michigan residents. 

On June 22, 2012, an accident occurred in which the subject Expedition, which 

was being operated by the Respondent Dawn Siegel, rolled-over multiple times after 

swerving to avoid hitting a Honda Odyssey that had made contact with the Expedition. The 

operator of the Honda Odyssey fled the scene in the vehicle. Neither the Honda Odyssey, 

nor its driver, were located until days later. At the time of the accident, Mrs. Siegel and her 

six children and step-children were in the Expedition. Two children were killed in the 

accident. The other family members suffered serious injuries to heads, arms and legs, as well 

as significant bruising. 

On February 12, 2014, the Respondents filed a complaint in the Circuit Court 

2

For purposes of this opinion, the Respondents do not include the circuit judge named 

in this action before the Court. 

3

The Respondents include Christie Siegel, individually and as successor-in-interest 

to the estate of Jordan Siegel and Ashley Siegel, deceased; Marc Siegel, individually and as 

successor-in-interest to the estate of Jordan Siegel and Ashley Siegel, deceased; Dawn 

Siegel, an individual, Erica Fox, an individual, Christopher Fox, an individual; Brooklyn 

Siegel, by and through her guardian Marc Siegel; and Madison Owens, by and through her 

guardian, Dawn Siegel. 

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of Roane County, West Virginia, asserting claims against Ford, Jack Garrett Ford, Inc., 

Kristin Kae Boss, the Ohio driver of the Honda Odyssey that struck the Respondents’ car, 

and Prestige Delivery Systems (“Prestige”), Ms. Boss’s employer. In the Complaint, the 

Respondents allege various torts against Ford and/or Jack Garrett Ford, Inc., including strict 

products liability based upon manufacturing and design defects in the Expedition. 

Ford, Jack Garrett Ford, Inc., and Prestige jointly moved to dismiss the civil 

action based upon the doctrine of forum non conveniens as set forth in West Virginia Code 

§ 56-1-1a. The Petitioners, analyzing each of the eight factors set forth in the statute, argued 

that Michigan was the correct forum for the litigation and that West Virginia had “little to 

no nexus to the subject matter in controversy in this case.” 

The Respondents then bifurcated their claims by filing a separate complaint 

against Prestige and Ms. Boss in the State of Ohio, while maintaining this action against 

Ford and Jack Garrett Ford, Inc., in West Virginia. The Respondents voluntarily dismissed 

Prestige and Ms. Boss from the instant action.4 

4

The parties have informed the Court that since the Respondents’ filing of a complaint 

against Prestige and Ms. Boss in Ohio, the lower court granted Prestige’s and Ms. Boss’s 

motion to dismiss that action based upon forum non conveniens. See Christie Siegel, et al. 

v. Kristin Kae Boss, et al., Case No. CV-14-826326 (Ct. Com. Pl. Cuyahoga Cnty. Aug. 21, 

2014). The Respondents are appealing that dismissal in Ohio. 

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On May 2, 2014, the Respondents filed their opposition to the Petitioners’ 

motion to dismiss, relying upon syllabus point two of Abbott v. Owens-Corning Fiberglass 

Corp., 191 W. Va. 198, 444 S.E.2d 285 (1994), which provides: 

“The common law doctrine of forum non conveniens is 

available to courts of record in this State. The doctrine accords 

a preference to the plaintiff’s choice of forum, but the defendant 

may overcome this preference by demonstrating that the forum 

has only a slight nexus to the subject matter of the suit and that 

another available forum exists which would enable the case to 

be tried substantially more inexpensively and expeditiously. To 

the extent that Gardner v. Norfolk & Western Railway Co., 

[179] W. Va. [724], 372 S.E.2d 786 (1988), cert. denied, 489 

U.S. 1016, 109 S. Ct. 1132, 103 L.Ed. 2d 193, (1989), declined 

to apply this doctrine, it is overruled.” Syl. pt. 3, Norfolk and 

Western Ry. Co. v. Tsapis, 184 W. Va. 231, 400 S.E.2d 239 

(1990). 

(Some emphasis added). Based upon the foregoing language in Abbott, the Respondents 

maintained that “the West Virginia Supreme Court has required a moving party to offer 

specific evidence that another forum is substantially more convenient and inexpensive.” 

Further, relying upon the holding in Abbott that “[i]n order for this Court to review a trial 

court’s decision regarding the application of the doctrine of forum non conveniens, it is 

necessary for the trial court to provide a record in sufficient detail which will show the basis 

of its decision[,]” 191 W. Va. at 204, 444 S.E.2d at 291, the Respondents argued that the 

Petitioners offered “[m]ere allegations and conclusions,” as support for their motion and 

failed to support it with any evidence. 

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The circuit court conducted a hearing on the Petitioners’ motion on May 8, 

2014. At the conclusion of the hearing, the court requested that the parties submit proposed 

orders. On July 3, 2014, the circuit court entered the Respondents’ proposed order denying 

the Petitioners’ motion to dismiss. Specifically, the circuit court found “the reasoning of 

Abbott persuasive” and “controlling.” Thus, applying the law enunciated in Abbott, the court 

determined that the Petitioners not only “failed to provide anysubstantive evidence that West 

Virginia was substantially more inconvenient and expensive than the alternate forum[,]” but 

also “merely relied on conclusory allegations in their pleading.” The circuit court further 

found that the Petitioners failed: 1) “to identify a single witness who believed West Virginia 

is unfairly burdensome or a witness who refuses to appear in West Virginia[;]” 2) to show 

that they were “substantially limited in their ability to present evidence or witnesses” in West 

Virginia; 3) “to identify any additional legal expenses incurred by litigating this case in West 

Virginia[;]” and 4) to “provide any evidence supporting the arguments that this case would 

burden West Virginia courts.” The circuit court also found that 

with respect to remedies available in Michigan, this Court is 

mindful that Michigan enforces a statute of repose. Michigan’s 

statute of repose requires a plaintiff to prove their case without 

the benefit of presumptions, like strict liability, if the product 

has been in use longer than 10 years. The subject vehicle is a 

1999 Ford Expedition so Michigan’s statute of repose would 

apply. While not necessarily determinative, Michigan’s statute 

of repose is inconsistent with the principles underlying West 

Virginia’s doctrine of strict products liability, which is critical 

in protecting West Virginia consumers. 

Lastly, the circuit court summarily stated in its order that “in evaluating the factors described 

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in § 56-1-1a, this Court finds that Plaintiffs choice of forum in West Virginia is appropriate 

as well.” There was no specific evaluation of the eight enumerated factors set forth in West 

Virginia § 56-1-1a. 

II. Standard of Review 

This Court has consistently held that “‘[p]rohibition will lie to prohibit a judge 

from exceeding his legitimate powers.’ Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W. 

Va. 30, 239 S.E.2d 660 (1977).” Syl. Pt. 1, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 

641, 713 S.E.2d 356 (2011). In Mylan, in discussing the standard of review applicable to 

venue disputes, we stated that 

[i]n the context of disputes over venue, such as dismissal for 

forum non conveniens, this Court has previously held that a writ 

of prohibition is an appropriate remedy “to resolve the issue of 

where venue for a civil action lies,” because “the issue of venue 

[has] the potential of placing a litigant at an unwarranted 

disadvantage in a pending action and [ ] relief by appeal would 

be inadequate.” State ex rel. Huffman v. Stephens, 206 W. Va. 

501, 503, 526 S.E.2d 23, 25 (1999); see also State ex rel. Riffle 

v. Ranson, 195 W. Va. 121, 124, 464 S.E.2d 763, 766 (1995) 

(“In recent times in every case that has had a substantial legal 

issue regarding venue, we have recognized the importance of 

resolving the issue in an original action.”). 

This Court typically reviews a circuit court’s decision on 

venue, including forum non conveniens, under an abuse of 

discretion standard. See Syl. Pt. 3, Cannelton Industries, Inc. v. 

Aetna Cas. & Sur. Co. of Am., 194 W. Va. 186, 460 S.E.2d 1 

(1994) (“A circuit court’s decision to invoke the doctrine of 

forum non conveniens will not be reversed unless it is found that 

the circuit court abused its discretion.”); Nezan v. Aries Techs., 

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Inc., 226 W. Va. 631, 637, 704 S.E.2d 631, 637 (2010) (“On the 

issue of forum non conveniens, we have held that the standard 

of review of this Court is an abuse of discretion.”). The Mylan 

Petitioners, however, contend that this Court’s review should be 

de novo because the circuit judges misapplied and/or 

misinterpreted the controlling statute. In Riffle, this Court 

explained: 

The normal deference accorded to a circuit court’s 

decision to transfer a case, Syl. pt. 3, Cannelton 

Industries, Inc. v. Aetna Casualty & Surety Co., 

194 W. Va. 186, 460 S.E.2d 1 (1994) (“[a] circuit 

court’s decision to invoke the doctrine of forum 

non conveniens will not be reversed unless it is 

found that the circuit court abused its discretion”), 

does not apply where the law is misapplied or 

where the decision to transfer hinges on an 

interpretation of a controlling statute. See 

Mildred L.M. v. John O.F., 192 W. Va. 345, 350, 

452 S.E.2d 436, 441 (1994) (“[t]his Court reviews 

questions of statutory interpretation de novo.”). 

Under these circumstances, our review is plenary. 

Mylan, 227 W. Va. at 645, 713 S.E.2d at 360-61. In the instant matter, because the 

Petitioners ask this Court to decide whether the circuit court erroneously based its decision 

on the Abbott case, rather than the forum non conveniens statute, West Virginia Code § 56-1­

1a, our review is de novo. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 

S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question 

of law or involving an interpretation of a statute, we apply a de novo standard of review.”). 

III. Discussion 

The issue before the Court is whether the circuit court failed to consider the 

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statutory factors set forth in West Virginia Code § 56-1-1a in determining whether to dismiss 

the case for forum non conveniens. The Petitioners maintain that the circuit court failed to 

heed this Court’s precedent requiring it to consider all the statutory forum non conveniens 

factors, misapplied the factors it did consider, and overlooked the fact that this case lacks any 

meaningful connection to West Virginia. Conversely, the Respondents maintain that 

“[b]ecause the Circuit Court considered and applied all of the W. Va. Code § 56-1-1a factors 

as required by State ex rel. Mylan v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 (2011)[,] it did 

not exceed its authority . . . .” 

At the heart of this case is West Virginia’s forum non conveniens statute, West 

Virginia Code § 56-1-1a, which provides: 

(a) In any civil action if a court of this state, upon a 

timely written motion of a party, finds that in the interest of 

justice and for the convenience of the parties a claim or action 

would be more properly heard in a forum outside this state, the 

court shall decline to exercise jurisdiction under the doctrine of 

forum non conveniens and shall stay or dismiss the claim or 

action, or dismiss any plaintiff: Provided, That the plaintiff’s 

choice of a forum is entitled to great deference, but this 

preference may be diminished when the plaintiff is a nonresident 

and the cause of action did not arise in this State. In 

determining whether to grant a motion to stay or dismiss an 

action, or dismiss any plaintiff under the doctrine of forum non 

conveniens, the court shall consider: 

(1) Whether an alternate forum exists in which the claim 

or action may be tried; 

(2) Whether maintenance of the claim or action in the 

courts of this State would work a substantial injustice to the 

moving party; 

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(3) Whether the alternate forum, as a result of the 

submission of the parties or otherwise, can exercise jurisdiction 

over all the defendants properly joined to the plaintiff’s claim; 

(4) The state in which the plaintiff(s) reside; 

(5) The state in which the cause of action accrued; 

(6) Whether the balance of the private interests of the 

parties and the public interest of the State predominate in favor 

of the claim or action being brought in an alternate forum, which 

shall include consideration of the extent to which an injury or 

death resulted from acts or omissions that occurred in this State. 

Factors relevant to the private interests of the parties include, 

but are not limited to, the relative ease of access to sources of 

proof; availability of compulsory process for attendance of 

unwilling witnesses; the cost of obtaining attendance of willing 

witnesses; possibility of a view of the premises, if a view would 

be appropriate to the action; and all other practical problems that 

make trial of a case easy, expeditious and inexpensive. Factors 

relevant to the public interest of the State include, but are not 

limited to, the administrative difficulties flowing from court 

congestion; the interest in having localized controversies 

decided within the State; the avoidance of unnecessaryproblems 

in conflict of laws, or in the application of foreign law; and the 

unfairness of burdening citizens in an unrelated forum with jury 

duty; 

(7) Whether not granting the stay or dismissal would 

result in unreasonable duplication or proliferation of litigation; 

and 

(8) Whether the alternate forum provides a remedy. 

. . . . 

(e) A court that grants a motion to stay or dismiss an 

action pursuant to this section shall set forth specific findings of 

fact and conclusions of law. 

(Emphasis added). 

This Court has previously examined the effect that the foregoing statute has on 

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all cases involving the doctrine of forum non conveniens. In syllabus points five and six of 

Mylan, we held that: 

By using the term “shall,” the Legislature has mandated 

that courts must consider the eight factors enumerated in West 

Virginia Code § 56-1-1a (Supp.2010), as a means of 

determining whether, in the interest of justice and for the 

convenience of the parties, a claim or action should be stayed or 

dismissed on the basis of forum non conveniens. 

In all decisions on motions made pursuant to West 

Virginia Code § 56-1-1a (Supp.2010), courts must state findings 

of fact and conclusions of law as to each of the eight factors 

listed for consideration under subsection (a) of that statute. 

227 W. Va. at 643, 713 S.E.2d at 358, Syl. Pt. 6 (emphasis added). 

While the circuit court mentions West Virginia Code § 56-1-1a in its order, it 

specifically finds that Abbott is still controlling. Further, the circuit court fails to state 

“findings of fact and conclusions of law as to the eight factors” listed in the statute, despite 

both the Legislature and this Court mandating that such findings of fact and conclusions of 

law be expressly made when determining whether forum non conveniens is applicable. See 

id.; 227 W. Va. at 642-43, 713 S.E.2d at 357-58. Rather, what is gleaned from our 

examination of the circuit court’s order is that it solely relied upon this Court’s decision in 

Abbott, which predated both West Virginia Code § 56-1-1a and this Court’s decision in 

Mylan. 

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Given the circuit court’s failure to properly evaluate the Petitioners’ motion to 

dismiss in a manner that comports with West Virginia Code § 56-1-1a, upon remand, the 

circuit court should re-evaluate forum non conveniens in the manner set forth in the statute, 

as well as in this Court’s decisions in Mace v. Mylan Pharmaceuticals, Inc., 227 W. Va. 666, 

714 S.E.2d 223 (2011), and Mylan. For example, regarding the first statutory factor 

concerning whether an alternate forum exists, this Court held in syllabus points eight and 

nine of Mace that: 

Under West Virginia Code § 56-1-1a (Supp.2010), 

dismissal of a claim or action on the basis of forum non 

conveniens presupposes at least two forums in which the 

defendant is amenable to process; the statute furnishes criteria 

for choice between them. In the event that the defendant is not 

amenable to process in any alternate forum, dismissal of a claim 

or action under this statute would constitute error. 

In considering “whether an alternate forum exists in 

which the claim or action may be tried” pursuant to West 

Virginia Code § 56-1-1a(a)(1) (Supp.2010), an alternate forum 

is presumed to “exist” where the defendant is amenable to 

process. Such presumption may be defeated, however, if the 

remedy provided by the alternative forum is so clearly 

inadequate or unsatisfactory that it is no remedy at all. In such 

cases, the alternate forum ceases to “exist” for purposes of 

forum non conveniens, and dismissal in favor of that forum 

would constitute error. 

227 W. Va. at 668, 714 S.E.2d at 225. In the instant matter, the circuit court failed to 

mention, discuss or apply the law enunciated by this Court in Mace in its determination of 

whether an alternative forum existed. 

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Further, in the instant matter, the circuit court determined that “Michigan 

enforces a statute of repose.” It is incumbent upon us to point out that the circuit court made 

this determination without any supporting legal authority to do so. In fact, according to the 

appendix record, the applicable Michigan statute upon which the circuit court relies is 

Michigan Compiled Laws Annotated § 600.5805(13) (LexisNexis 2004 & Supp. 2014), 

which provides: “The period of limitations is 3 years for a products liability action. 

However in the case of a product that has been in use for not less than 10 years, the plaintiff, 

in proving a prima facie case, shall be required to do so without benefit of any presumption.” 

This is not a statute of repose, but a statute of limitations. As the Michigan Court of Appeals 

stated in Frankenmuth Mutual Insurance Co. v. Marlette Homes, Inc., 573 N.W.2d 611 

(Mich. 1998), when presented with Michigan’s statute of repose,5 

5

Michigan’s statute of repose, Michigan Compiled Laws Annotated § 600.5839(1) 

(LexisNexis Supp. 2014), provides as follows: 

(1) A person shall not maintain an action to recover 

damages for injury to property, real or personal, or for bodily 

injury or wrongful death, arising out of the defective or unsafe 

condition of an improvement to real property, or an action for 

contribution or indemnity for damages sustained as a result of 

such injury, against any state licensed architect or professional 

engineer performing or furnishing the design or supervision of 

construction of the improvement, or against any contractor 

making the improvement, unless the action is commenced 

within either of the following periods: 

(a) Six years after the time of occupancy of the 

completed improvement, use, or acceptance of the improvement. 

(b) If the defect constitutes the proximate cause of 

(continued...) 

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[t]he Court of Appeals explained how such a measure [referring 

to Michigan’s statute of repose] differs from a statute of 

limitation: 

A statute of repose limits the liability of a party by 

setting a fixed time after the sale or first use of an 

item beyond which the party will not be held 

liable for defects in it or injury or damage arising 

from it. Unlike a statute of limitations, a statute 

of repose may bar a claim before an injury or 

damage occurs. O’Brien v. Hazlet & Erdal, 410 

Mich. 1, 15, 299 N.W.2d 336 (1980); Oole v. 

Oosting, 82 Mich. App. 291, 298-300, 266 

N.W.2d 795 (1978). 

573 N.W.2d at 612 n.3. 

Upon remand, when giving due consideration of West Virginia Code § 

5

(...continued) 

the injury or damage for which the action is brought and is the 

result of gross negligence on the part of the contractor or 

licensed architect or professional engineer, 1 year after the 

defect is discovered or should have been discovered. However, 

an action to which this subdivision applies shall not be 

maintained more than 10 years after the time of occupancy of 

the completed improvement, use, or acceptance of the 

improvement. 

(2) A person shall not maintain an action to recover 

damages based on error or negligence of a licensed professional 

surveyor in the preparation of a survey or report more than 6 

years after the survey or report is recorded or is delivered to the 

person for whom it was made or the person’s agent. 

(Emphasis added). 

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56-1-1a(a)(1) and (8), regarding whether a remedy exists in Michigan,6 we direct the circuit 

court’s attention to the Mylan decision, wherein we stated: 

[T]he Supreme Court in Piper Aircraft [Co. v. Reyno, 454 U.S. 

235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)] acknowledged that, 

in rare instances, a change in substantive law in an alternate 

forum may be so significant that it would, in effect, eliminate 

the plaintiff’s chance of recovery in the case. In such instances, 

the law of the alternate forum cannot be ignored. Thus, the 

United States Supreme Court stated that “if the remedy provided 

by the alternative forum is so clearly inadequate or 

unsatisfactory that it is no remedy at all, the unfavorable change 

in law may be given substantial weight. . . .” Id. at 254, 102 

S.Ct. 252. Importantly, however, the facts of Piper Aircraft 

6

The Respondents argue that the Michigan statute is a statute of repose and that 

because of the Michigan statute “the substantive difference between the States is so great that 

Michigan law would abrogate Plaintiffs’ strict liability in tort case.” To support their 

argument, the Respondents ask this Court to adopt the reasoning of the Supreme Court of 

New Jersey in Gantes v. Kason Corp., 679 A.2d 106 (N.J. 1996), wherein the representatives 

of decedent’s estate filed a complaint alleging, inter alia, strict liability in New Jersey, where 

the manufacturer of a piece of machinery was located. The accident causing the decedent’s 

death occurred in Georgia. The action was filed in New Jersey was because Georgia had a 

statute of repose that would have barred the action, while New Jersey had a statute of 

limitations that would allow the action to go forward. The primary issue before the New 

Jersey court centered upon choice of laws and the New Jersey court ultimately determined 

that it would apply its statute of limitations, which allowed the case to proceed. On the issue 

of forum non conveniens, the court found that the issue was not properly before it; however, 

it also noted that “dismissal pursuant to the doctrine of forum non conveniens cannot occur 

if the transfer will result in significant hardship to the plaintiffs.” Id. at 499. In Gantes, the 

New Jersey court found that “without doubt, a dismissal of this action will cause severe 

hardship to plaintiff. If this action cannot proceed in New Jersey, plaintiff will be left with 

no forum in which to proceed and will be denied recovery altogether.” Id. 

Such is not the case in the instant matter before the Court. Unlike the Gantes 

decision, Michigan’s law does not act as a bar to the Respondents’ action in Michigan. It 

only eliminates a presumption because more than ten years has passed. Accordingly, we 

decline to adopt the law enunciated by the New Jersey court in Gantes. 

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made clear that the remedy offered by an alternate forum is not 

rendered inadequate simply because that forum does not 

recognize one of several claims asserted by a plaintiff. Id. at 

255, 102 S. Ct. 252 (“Although the relatives of the decedents 

may not be able to rely on a strict liability theory, and although 

their potential damages award maybe smaller, there is no danger 

that they will be deprived of any remedy or treated unfairly.”) 

Mylan, 227 W. Va. at 647 n.5, 713 S.E.2d at 362 n.5 (quoting, in part, Piper Aircraft, 454 

U.S. at 254-55). In the instant action, the circuit court found that “[w]hile not necessarily 

determinative, Michigan’s statute of repose is inconsistent with the principles underlying 

West Virginia’s doctrine of strict products liability.” Being “inconsistent with principles” 

of West Virginia law, however, is not enough under our law. Rather, the circuit court must 

examine whether the remedy under Michigan law “is so clearly inadequate or unsatisfactory 

that it is no remedy at all.” Mace, 227 W. Va. at 668, 714 S.E.2d at 225, at Syl. Pt. 9, in part. 

IV. Conclusion 

Based upon the foregoing, this Court issues the requested writ as moulded. 

The action is remanded for further consideration of the Petitioners’ motion to dismiss for 

forum non conveniens. On remand, the circuit court is instructed to consider the law 

enunciated by this Court in Mace and Mylan and to set forth clear findings of fact and 

conclusions of law as to each of the eight factors listed in West Virginia Code § 56-1-1a 

whether the circuit court ultimately grants or denies the motion to dismiss. 

Writ granted as moulded. 

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