CHARLESTON – The nation’s three largest drug distributors has filed a petition with the state Supreme Court questioning whether the state Mass Litigation Panel exceeded its authority by grouping more than 60 public nuisances opioid claims into one statewide complaint.
AmerisourceBergen, Cardinal Health and McKesson filed the Petition for Writ of Prohibition on December 7 with the state Supreme Court. Judge Alan D. Moats, the lead presiding judge in the MLP’s opioid litigation, is listed as a respondent, as well as 63 government entities and individuals representing local governments from the across the state.
The petition presents three questions to the Justices.
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The first question is “Whether the Mass Litigation Panel exceeded its legitimate powers and committed a clear legal error when it converted 63 plaintiffs’ individual, jurisdiction-specific public nuisance claims into a single claim for a statewide public nuisance, despite the fact that distributors have previously settled any statewide public nuisance liability.”
The distributors note the state filed separate lawsuits against the three defendants and other distributors in Boone Circuit Court. The cases against the three defendants were settled in 2017 and 2019.
The second question asks if the MLP was right when it ordered a “Phase 1 liability trial to determine whether distributors are liable for public nuisance, without requiring each plaintiff to establish all of the essential liability elements of a public nuisance claim, including the existence of a nuisance in the plaintiff jurisdiction or that a distributor’s conduct caused the harms alleged by the plaintiff.”
The third question is if the MLP was correct to deny the distributors’ right to take liability-related discovery from each plaintiff.
“The Mass Litigation Panel has single out McKesson Corporation, Cardinal Health Inc. and AmerisourceBergen Drug Corporation for a piecemeal, one-sided trial divorced from the burden of proof and devoid of procedural protections required by due process,” the petition states. “The panel’s ruling exposes just three (of several) wholesale distributors to potential liability for billions of dollars but without requiring any of the 63 plaintiffs to prove the elements of their claims and without permitting distributors to take any individual discovery of any plaintiff that has sued them.
“These errors require this court’s intervention now to prevent a vast waste of resources and a grave miscarriage of justice that violates defendants’ due process rights.”
The MLP ordered the claims by 63 counties and municipalities to proceed to a non-jury liability trial in July 2022 when the panel will decide if the distributors are liable for billions of dollars in harms from opioid abuse. If the distributors are found liable, the MLP will later address “the equitable remedy of abatement” to determine how much each plaintiff recovers from the distributors.
“Despite the magnitude of the claims at issue, the panel tied distributors’ hands in three fundamentally unfair ways – each of which independently would require reversal on appeal,” the petition states.
First, the distributors say the MLP’s ruling to limit the Phase 1 liability inquiry to “aggregate” evidence of a “statewide” public nuisance dispenses the need for individual proof despite the companies already settling claims brought by the state, which they say is the only entity that has standing to bring a statewide public nuisance claim. In addition, they note that more than 50 counties and municipalities have claims against the distributors pending in federal court.
“A trial that purports to determine ‘statewide’ liability as to a collection of plaintiffs that does not include the state appears to be unprecedented,” the petition states.
Second, the MLP says liability could be established during the Phase 1 trial by showing the defendants’ conduct caused the oversupply and diversion of opioids in West Virginia. The defendants say this ruling erroneously assumes the existence of oversupply and diversion, which are contested issues in the cases. They say it also allows the plaintiffs to establish liability without proof that a public nuisance exists in each of the 63 jurisdictions and allows plaintiffs to establish liability based only on a finding of what the MLP calls “general causation.”
Third, the MLP says the distributors must go into the Phase 1 trial without taking any individual discovery from the 63 plaintiffs.
“This unprecedented, one-way ruling makes it impossible for distributors to prepare an effective defense to plaintiffs’ claims with no ability to even discover, much less prove at trial, key facts that would bear on whether a public nuisance exists in each plaintiff jurisdiction and whether any wrongful conduct by one or more of distributors caused the injuries underlying that particular plaintiff’s claim,” the petition states. “In other states and the federal multidistrict litigation, courts are managing the large number of local-government opioid plaintiffs through the family device of bellwether trials.”
The distributors say the Supreme Court’s intervention is necessary.
“Absent correction of the panel’s manifest errors now, the parties will be required to litigate and expend vast resources through a trial that will be facially unlawful, require reversal by this court years down the road and do nothing to advance resolution of the opioid litigation,” the petition states. “If not addressed through prohibition, the panel’s errors …would require complete reversal on appeal and an entirely new trial.
“The parties should not be ‘compelled to go through an expensive, complex trial and appeal from a final judgment’ when the issues presented are fundamentally important legal issues ‘which may be resolved independently of any disputed facts.’ Prohibition is the only adequate means of relief.”
The distributors ask the court to grant the petition, issue a writ ordering the MLP vacate its Phase 1 statewide liability trial plan, direct the MLP to formulate a trial plan that complies with the distributors’ due process and other legal rights as well as reverse the MLP’s ruling that the distributors are not entitled to individual liability-related discovery from the plaintiffs.
One of the attorneys representing a few of the plaintiffs said the distributors’ filing wasn’t a surprise.
“It was not unexpected they would file this writ,” Rusty Webb told The West Virginia Record. “I think the Supreme Court is going to put it on an expedited track. There are only six months now, and you can’t lose any time with this important of a case.”
AmerisourceBergen is being represented by Gretchen Callas and Albert Sebok of Jackson Kelly’s Charleston office as well as by Todd Mount of Shaffer & Shaffer’s Madison office. McKesson is being represented by Russell Jessee and John Meadows of Steptoe & Johnson’s Charleston office as well as by Jeffrey Wakefield of Flaherty Sensabaugh Bonasso in Charleston and Daniel Cooper and Jamison Cooper of Cooper Law Offices in Bridgeport. Cardinal Health is being represented by Michael Carey, Steve Ruby, David Pogue and Raymond Franks of Carey Douglas Kessler & Ruby in Charleston.
The plaintiff agencies are being represented by Paul T. Farrell Jr. of Farrell & Fuller in San Juan, Puerto Rico, as well as by Robert Fitzsimmons, Clayton Fitzsimmons and Mark Colantonio of Fitzsimmons Law Firm in Wheeling and by Timothy Linkous of Linkous Law in Morgantown.
This case before the state MLP is not the same as the federal trial that happened earlier this year before U.S. District Judge David Faber. In that bellwether trial, the same defendant distributors were sued by the Cabell County Commission and by the City of Huntington. Faber hasn’t issued his ruling in that case yet.
West Virginia Supreme Court of Appeals case number 21-0986