By Robert B. Barnett Jr., J.D.
Despite denying the extraordinary remedy of prohibition, the West Virginia Supreme Court granted a narrow writ ensuring that common issues were tried before a jury.
In the massive West Virginia opioid litigation, the plaintiff state, counties, cities, and hospitals were not entitled to a bench trial on the public nuisance claims filed against the defendant manufacturers and distributors of prescription opioid pain medication in phase I of the litigation because such an arrangement could deprive the manufacturers and the distributors of their constitutionally guaranteed right to a jury trial on the legal claims, the Supreme Court of Appeals of West Virginia has ruled, in a split decision that reversed the ruling of a Mass Litigation Panel of circuit court judges convened to help manage the litigation. Thus, even if the public nuisance claim was deemed to be an equitable remedy, and even if the legal issues were subsequently tried before a jury, decisions reached in the non-jury public nuisance phase of the trial could preclude re-litigation of those issues in the jury trial phase, thus depriving the manufacturers and distributors of their constitutionally guaranteed right to a jury trial on their legal claims. As a result, the Court issued a narrow writ ordering that all issues common to both the public nuisance claim and the legal claims be tried before a jury (State of West Virginia ex rel. AmerisourceBergen Drug Corporation v. Moats, June 11, 2021, Walker, E.).
Background. Beginning in 2017, the State of West Virginia, West Virginia counties, West Virginia municipalities, and hospitals filed more than 80 lawsuits against a collection of manufacturers and distributors of prescription opioid pain medications, seeking to address the state’s opioid crisis. The lawsuits were consolidated into a single Opioid Litigation case, which empowered a Mass Litigation Panel to help resolve the lawsuits. The Panel consists of seven active or senior-status circuit court judges appointed by the Chief Justice of the state Supreme Court.
As the litigation ground on, the Panel ruled that (1) the manufacturers and distributors did not have the right to a jury trial on the public nuisance claims (liability only) because it was an equitable remedy and (2) those public nuisance claims were not subject to 2015 amendments to West Virginia’s comparative fault statute (which would have allowed the manufacturers and distributors to place some of the blame on non-parties) because the actions giving rise to liability occurred before the amendments were made. The manufacturers and distributors appealed the two decisions to the state Supreme Court, asking for, among other things, the extraordinary remedy of prohibition, which corrects clear legal errors made in contravention to legal rights.
Public nuisance claims. The Panel had rejected the manufacturers and distributors’ request for a jury trial on the public nuisance claims (liability only) on the ground that it, together with the abatement remedy, were equitable in nature, and thus beyond the constitutionally guaranteed right to jury trials. Various courts around the country have ruled in other similar opioid litigation that a public nuisance claim is an equitable remedy, while others have ruled just the opposite, that it is a legal remedy. No appellate courts have yet addressed the question.
As a result, the Court ruled that the extraordinary remedy of contravention was not merited under these facts because the Panel’s ruling was not in contravention to a clear legal mandate, given the confusion on the issue. The remedy of contravention was thus denied for both grounds: (1) whether the manufacturers and distributors were entitled to a jury trial on the public nuisance claims (liability only) and (2) whether those public nuisance claims were subject to 2015 amendments to West Virginia’s comparative fault statute. Such a ruling, however, did not require a blanket denial of the writ that the manufacturers and distributors sought. Instead, the Court declared that it would look further at whether the ruling to conduct a bench trial on liability of the public nuisance claim would deprive the manufacturers and distributors of their constitutional right to a jury trial on the pending legal claims. In other words, even though the Panel did not err in concluding that the public nuisance claims were equitable, it might have erred by allowing the equitable claim to be tried prior to the legal claims.
Right to a jury trial. A single set of facts, of course, can result in both equitable and legal claims. In West Virginia Human Rights Commission v. Tenpin Lounge, 211 S.E.2d 351, the West Virginia Supreme Court ruled that, where issues were common to both legal and equitable claims, the order should be established so that "the jury first determines the common issues." If the court so chooses, it has the right to submit all of the issues to the jury because no reversible error occurs when equitable issues are submitted to a jury.
Under the facts in this case, the Court said, common issues pervaded the determination of both public nuisance liability and the legal claims. As a result, under Tenpin Lounge, "a jury must decide those overlapping issues." In so ruling, the Court rejected the argument that requiring a bench trial on public nuisance liability would not infringe any rights given that the manufacturers and distributors would still get a jury trial on the legal claims because res judicata or collateral estoppel could act to deprive them of their rights in a later jury trial. The jury must be the one to decide any common issues, in order to prevent the deprivation of the constitutionally guaranteed right to a jury trial on the legal claims.
Furthermore, while the Panel had wide authority to manage highly complex litigation, it could not deprive parties of their constitutional rights in the name of expediency. As a result, the Court issued a "narrow" writ to require a jury trial on issues common to a determination of liability for public nuisance and the legal claims.
The Court, therefore, mostly denied the writs, but it granted a narrow writ requiring a jury trial on common issues.
The cases are Nos. 20-0694 and 20-0751.
Attorneys: Albert F. Sebok (Jackson Kelly PLLC) for State of West Virginia. Michael W. Carey (Carey Douglas Kessler & Ruby PLLC) for Cardinal Health, Inc. Webster J. Arceneaux III (Lewis Glasser, PLLC) for Rite Aid of West Virginia, Inc. and Rite Aid of Maryland, Inc. d/b/a Rite Aid Mid- Atlantic Customer Support Center.
Companies: Cardinal Health, Inc.; Rite Aid of West Virginia, Inc.; Rite Aid of Maryland, Inc. d/b/a Rite Aid Mid- Atlantic Customer Support Center
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