CHARLESTON – The future of key aspects of the “most complex” opioid cases being handled by the state Mass Litigation Panel is in the hands of the state Supreme Court.
During 90 minutes of oral arguments February 17, attorneys for several of the parties involved in the litigation made their points to the five Justices about multiple challenges to previous decisions by the Mass Litigation Panel, which is overseeing the cases.
Attorneys for drug manufacturers, distributors, pharmacies, hospitals, cities and counties took part in the hearing.
Most of the discussion during Wednesday’s oral arguments focused on whether the cases should be heard by a judge or by a jury and whether the damages being sought by the government entities should be labeled as damages or abatement. Specifically, whether tort reforms that eliminating joint and several liability applies to a nuisance abatement claim.
“The plaintiffs’ complaint which they’re bound to mentions throughout damages that they’re trying to seek, so we don’t think we’re too early at this point to make this foundational determination of whether we’re entitled to the right to a jury or not,” said attorney Albert Sebok, who was speaking on behalf of drug distributors.
Marc Williams, an attorney representing Janssen and other drug manufacturers during the oral arguments, addressed the complexity of the cases.
“The plaintiffs have filed 90-something lawsuits involving 90 defendants,” he told the Justices. “That level of complexity is something we’re not used to dealing with, and the Mass Litigation Panel’s doing an admirable job in trying to get their hands around it. …
“It is a matter of fundamental fairness, and it is a matter of consistency with the policy that is set forth by the Legislature that all of the parties that bear responsibility for the creation of the nuisance should have the opportunity to be heard and to have fault or responsibility apportioned by a jury.”
Williams said the plaintiffs are seeking money.
“There is no request for injunction in their complaints,” he said.
Anthony Majestro, an attorney representing Beckley, Fairmont and more than 60 other cities and counties, succinctly said, “This is a complex case.”
“In fact, lots of people – defendants, plaintiffs and judges – have said this matter is among the most complex litigation ever brought in the history of the United States.”
The plaintiffs want bench trials, meaning the case would be heard and decided by judges rather than a jury.
“We have a serious problem with opioids in this state, as does this nation,” Majestro told the Justices. “My clients – the cities and counties and the governmental plaintiffs that are bringing these claims – are looking for the quickest way to solve that problem. The (MLP) panel told us the quickest way is not a jury trial, it’s a bench trial. We don’t object to that.”
West Virginia Supreme Court of Appeals case numbers 20-0694 and 20-0751