CHARLESTON — The West Virginia Supreme Court of Appeals ruled amendments to West Virginia's comparative fault statute do not apply to public nuisance claims.
"In the consolidated petitions before us, petitioners are defendants in the Opioid Litigation who ask this court for extraordinary relief prohibiting enforcement of the (Mass Litigation) Panel’s recent rulings that (1) petitioners do not have a right to a jury trial of respondents’ public nuisance claims (liability only); and (2) those same public nuisance claims are not subject to the 2015 amendments to West Virginia’s comparative fault statute," Justice Beth Walker wrote in the majority opinion.
She noted that the plaintiffs in the opioid litigation urge the court not to disturb the rulings by the panel.
"For the reasons discussed below, we grant in part and deny in part Petition No. 20-0694 and deny Petition No. 20-0751," she wrote. "We conclude that the panel did not clearly err when it found that the 2015 amendments do not apply to the public nuisance claims.
"But, we also find that the panel did clearly err by not safeguarding petitioners’ right to try issues common to respondents’ public nuisance claims and their legal claims to a jury."
Beginning in 2017, dozens of municipalities and hospitals throughout West Virginia began to sue manufacturers and distributors of prescription opioids, culminating in more than 80 lawsuits that are now before the Mass Litigation Panel.
These are not the cases filed by the City of Huntington and Cabell County against AmerisourceBergen, Cardinal Health and McKesson that currently are being heard in federal court by Judge David Faber. Those cases are public nuisance claims.
In June 2019, the Supreme Court referred five cases that were filed by county commissions to the Mass Litigation Panel. In February 2020, the panel issued an order formalizing a proposal and ordering a Phase I trial and the following month, the opioid companies asked for the order to be reconsidered, arguing that a Phase I trial would violate their other claims to be tried by a jury. The panel denied the motion last July.
"The panel recounted its February order regarding the non-jury trial of plaintiffs’ public nuisance claims (liability only) and reiterated its determination that those public nuisance claims are equitable," Walker wrote. "The panel recognized defendants’ argument that abatement is traditionally accomplished by injunctive relief — not payment of money — but found that its powers to fashion equitable relief are broad, and that nothing precludes it from ordering defendants to pay the costs associated with abating the alleged public nuisance (assuming any defendants are found liable)."
The opioid companies then appealed to the state Supreme Court.
Justice Tim Armstead concurred in part and dissented in part with the majority, saying it was undeniable that the opioid crisis had a devastating impact on the state and that while he agreed that the 2015 Act applies to the plaintiffs’ claims at issue in this request for extraordinary relief and the defendants should be allowed to proceed to trial, allowing the jury to consider the notices of non-party fault they previously filed.
"Therefore, I respectfully concur with the majority’s conclusion that defendants are entitled to a trial by jury of their public nuisance claims and I dissent as to the majority’s denial of an extraordinary writ to prohibit the panel from enforcing its order finding the 2015 Act to be inapplicable to plaintiffs’ public nuisance claims and striking defendants’ notices of non-party fault," Armstead wrote. Chief Justice Evan Jenkins joined Armstead in the opinion.
Justice Bill Wooton also concurred in part and dissented in part. He wrote in a separate opinion that he agreed with the court's judgment regarding the Mass Litigation Panel's decision to hold a bench trial, but that he didn't agree with the court's analysis.
Wooton wrote that he would defer to the wisdom of the judicial officers entrusted with the front-line responsibility of handling mass litigation to devise procedures and methods for accomplishing the stated goals of the Mass Litigation Panel.
"The majority’s decision, which effectively strips the panel of its authority to 'take such action as is reasonably necessary and incidental to the powers and responsibilities conferred by [Trial Court Rule 26.05],' will be seen as an invitation for every disappointed litigant in every mass litigation case to challenge every decision of the Panel on a writ," he wrote.
Justice John Hutchison concurred with the majority and authored a separate opinion, saying he applauded the majority for a well-researched and well-reasoned opinion.
"Again, I express my admiration for the finesse applied by the majority opinion to the complicated, speculative questions raised by the defendants in their petitions," he wrote. "The majority opinion both upholds the fundamental right to a jury trial, while simultaneously preserving the ability of the trial court to formulate whatever trial plan is necessary to expeditiously resolve the parties’ dispute."
West Virginia Supreme Court of Appeals case numbers: 20-0694, 20-0751