Ex parte Endo Health Sols.

• Decision Date: 19 November 2021
• Docket Number: 1200470
• Parties: Ex parte Endo Health Solutions Inc. et al. v. Purdue Pharma L.P. et al. In re: The DCH Health Care Authority et al.
• Court: Alabama Supreme Court

Ex parte Endo Health Solutions Inc. et al.

In re: The DCH Health Care Authority et al. v. Purdue Pharma L.P. et al.

No. 1200470

Supreme Court of Alabama

November 19, 2021

Conecuh Circuit Court, CV-19-7

PETITION FOR WRIT OF MANDAMUS

SELLERS, Justice.

Several entities that own or operate hospitals in Alabama ("the plaintiffs") commenced an action in the Conecuh Circuit Court ("the trial court") against manufacturers of prescription opioid medications, distributors of those medications, and retail pharmacies ("the defendants"), alleging that the defendants' marketing or selling of the medications resulted in an epidemic of opioid abuse in Alabama.^[1] The plaintiffs sought to recover unreimbursed medical expenses incurred in treating individuals with opioid-related medical conditions. Among other theories of liability, the plaintiffs asserted that the defendants had created a public nuisance in the form of the epidemic.

The trial court entered a case-management order directing the parties to try each of the plaintiffs' causes of action separately. The public-nuisance claim is to be tried first and is itself to be bifurcated into two separate trials. The first trial on the public-nuisance claim is to involve "liability," and the second trial is to involve "special damage." The defendants, asserting that the trial court had erred in bifurcating the public-nuisance claim, petitioned this Court for a writ of mandamus directing the trial court to vacate the relevant portion of the case-management order. We grant the petition and issue the writ.^[2]

"Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals. Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured."

§ 6-5-121, Ala. Code 1975 (emphasis added). However, "[i]f a public nuisance causes a special damage to an individual in which the public does not participate, such special damage gives a right of action." § 6-5-123, Ala. Code 1975. Thus, a nuisance that can be considered public in nature can nevertheless be the basis of a cause of action brought by an individual plaintiff if the plaintiff incurs" 'special damage' that is different in 'kind and degree from [the damage] suffered by the public in general.' City of Birmingham v. City of Fairfield, 375 So.2d 438, 441 (Ala. 1979); Ala. Code 1975 § 6-5-123." Russell Corp. v. Sullivan, 790 So.2d 940, 951 (Ala. 2001). See also First Ave. Coal & Lumber Co. v. Johnson, 171 Ala. 470, 475, 54 So. 598, 600 (1911) ("A nuisance may be at the same time both of a public and of a private character."). In their complaint, the plaintiffs asserted that they had "suffered a special injury, different from that suffered by the public at large, by individual users [of the opioid medications] and by governmental entities, namely that Plaintiffs have provided uncompensated care for patients suffering from opioid-related conditions and incurred elevated operational costs."

The trial court's case-management order provides:

"Pursuant to Rule 42(b)[, Ala. R. Civ. P.], the Court is scheduling as Track 1 claims by the plaintiffs under the public nuisance count of the complaint. To avoid unduly burdening the jury, this issue will be bifurcated and tried in two separate and distinct phases. On May 16, 2022, this matter is scheduled for a jury trial on the issue of the defendants' liability for public nuisance. Special damage claims caused by the public nuisance, if any, shall be set for a separate jury trial upon conclusion of the initial trial phase, if necessary. All other claims brought by the Plaintiffs are stayed pending resolution of the initial public nuisance trial."

After entry of the case-management order, the defendants timely filed their petition for a writ of mandamus.^[3]

" 'The standard governing our review of an issue presented in a petition for the writ of mandamus is well established:

"' "[M]andamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." '

"Ex parte Cupps, 782 So.2d 772, 774-75 (Ala. 2000) (quoting Ex parte Edgar, 543 So.2d 682, 684 (Ala. 1989))."

Ex parte Webber, 157 So.3d 887, 891 (Ala. 2014). A petition for a writ of mandamus is an appropriate means of seeking review of an order calling for separate trials. Ex parte Brookwood Med. Ctr., 994 So.2d 264, 268 (Ala. 2008); Ex parte Skelton, 459 So.2d 825 (Ala. 1984).

The defendants describe the requirement that an individual prove "special damage" to obtain a remedy for an otherwise public nuisance as implicating the individual's "standing" to seek a remedy for the nuisance. And, because "[t]he question of standing implicates the subject-matter jurisdiction of the court," Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 319 (Ala. 2011), and because subject-matter jurisdiction has been described as a "threshold" issue, Moore v. City of Center Point, 319 So.3d 1223, 1228 (Ala. 2020), the defendants assert that the plaintiffs should be required to establish first that they suffered special damage from the alleged public nuisance. Thus, they argue, the trial court erred in directing that the issue of special damage be tried after the issue of the defendants' "liability."

In support of their jurisdiction-based argument, the defendants point to Russell Corp. v. Sullivan, 790 So.2d 940, 951 (Ala. 2001), which simply acknowledges that an individual who has incurred special damage can seek to remedy a nuisance that would otherwise be considered a purely public nuisance. Russell Corp. makes no mention of standing or subject-matter jurisdiction. The defendants also point to Sloss-Sheffield Steel & Iron Co. v. Johnson, 147 Ala. 384, 386, 41 So. 907, 908 (1906), which states:

"The general rule is that a private individual, who suffers no damage different from that sustained by the public at large, has no standing in court for the abatement of a public nuisance; but, if he sustains an individual or specific damage in addition to that suffered by the public, he may sue to have the same abated if the remedy at law is inadequate."

Although the Court in Sloss-Sheffield did state that an individual without special damage "has no standing in court for the abatement of a public nuisance," id., the opinion in that case makes no express mention of subject-matter jurisdiction. Sloss-Sheffield does not clearly hold that an individual who brings a public-nuisance action and alleges facts that are claimed to constitute special damage, but ultimately is unable to prove those facts, lacks standing and, thus, that the trial court never acquired subject-matter jurisdiction over the action. Russell Corp. and Sloss-Sheffield are the only cases cited in the mandamus petition in support of the defendants' assertion that the plaintiffs must prove special damage to demonstrate the "standing" necessary for the trial court to acquire subject-matter jurisdiction over the public-nuisance claim.^[4]

In Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31 (Ala. 2013), this Court considered two trial-court rulings in separate ejectment actions commenced pursuant to § 6-6-280(b), Ala. Code 1975, which requires a plaintiff in such an action to establish that he or she "was possessed of the premises or has the legal title thereto." The Court held that arguments asserting that the plaintiffs had failed to establish that they had possession or legal title to the properties at issue did not implicate standing and subject-matter jurisdiction. Rather, this Court held, establishing possession or legal title was simply an element of the plaintiffs' ejectment claims. In other words, if the plaintiffs in BAC Home Loans had failed to demonstrate that they had possession or legal title, they did not "have a 'standing' problem" but, instead, "a 'failure to prove one's cause of action' problem." 159 So.3d at 46. In so holding, the Court noted that, in past decisions, the Court had "been too 'loose' in its use of the term 'standing.'" Id. at 39. The Court indicated that the concept of standing, as it affects subject-matter jurisdiction, is generally relevant only in public-law cases as opposed to private-law cases:

"[T]he concept [of standing] appears to have no necessary role to play in respect to private-law actions, which, unlike public-law cases (for example, a suit against the Secretary of Interior to construe and enforce an environmental regulation designed to protect wildlife), come with established elements that define an adversarial relationship and 'controversy' sufficient to justify judicial intervention. In private-law actions (e.g., a claim of negligence or, as here, a statutory claim for ejectment), if the elements are met, the plaintiff is entitled to judicial intervention; if they are not met, then the plaintiff is not entitled to judicial intervention."

Id. at 44. See also Ex parte Skelton, 275 So.3d 144, 151 (Ala. 2018) ("[T]he doctrine of standing (particularly as a jurisdictional concept) has no application in this private-law case.").

The defendants, as the petitioners, bear the burden here. We are not convinced by their arguments that the special-damage requirement is a prerequisite to an individual's obtaining standing or the court's obtaining subject-matter...