State ex rel. AmerisourceBergen Drug Corp. v. Moats

• Citation: 859 S.E.2d 374
• Decision Date: 11 June 2021
• Docket Number: 20-0751,Nos. 20-0694,s. 20-0694
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia EX REL. AMERISOURCEBERGEN DRUG CORPORATION, et al., Petitioners v. The Honorable Alan D. MOATS, Lead Presiding Judge, Opioid Litigation, Mass Litigation Panel, et al., Respondents State of West Virginia ex rel. Johnson & Johnson, et al., Petitioners v. The Honorable Alan D. Moats, Lead Presiding Judge, Opioid Litigation, Mass Litigation Panel, et al., Respondents

859 S.E.2d 374

STATE of West Virginia EX REL. AMERISOURCEBERGEN DRUG CORPORATION, et al., Petitioners

v.The Honorable Alan D. MOATS, Lead Presiding Judge, Opioid Litigation, Mass Litigation Panel, et al., Respondents

State of West Virginia ex rel. Johnson & Johnson, et al., Petitioners

v.The Honorable Alan D. Moats, Lead Presiding Judge, Opioid Litigation, Mass Litigation Panel, et al., Respondents

Nos. 20-0694

20-0751

Supreme Court of Appeals of West Virginia.

Submitted: February 17, 2021

Filed: June 11, 2021

Albert F. Sebok, Esq., Gretchen M. Callas, Esq., Candice M. Harlow, Esq., Charleston, West Virginia, JACKSON KELLY PLLC, Todd A. Mount, Esq., SHAFFER & SHAFFER, PLLC, Madison, West Virginia, Counsel for Petitioner AmerisourceBergen Drug Corporation.

Michael W. Carey, Esq., Steven R. Ruby, Esq., Raymond S. Franks II, Esq., David R. Pogue, Esq., CAREY DOUGLAS KESSLER & RUBY PLLC, Charleston, West Virginia, Counsel for Petitioner Cardinal Health, Inc.

Webster J. Arceneaux III, Esq., LEWIS GLASSER, PLLC, Charleston, West Virginia, Counsel for Petitioners Rite Aid of West Virginia, Inc. and Rite Aid of Maryland, Inc. d/b/a Rite Aid Mid-Atlantic Customer Support Center.

Erik W. Legg, Esq., FARRELL, WHITE & LEGG PLLC, Huntington, West Virginia, Counsel for Petitioners Endo Pharmaceuticals Inc.; Endo Health Solutions Inc.; Par Pharmaceutical Companies, Inc.; Par Pharmaceutical Inc.

Keith A. Jones, Esq., JONES LAW GROUP, PLLC, Charleston, West Virginia, Steven A. Luxton, Esq., MORGAN, LEWIS & BOCKIUS LLP, Washington, DC, Counsel for Petitioners Watson Laboratories, Inc.; Warner Chilcott Company, LLC; Actavis Pharma, Inc. f/k/a Watson Pharma, Inc.; Actavis South Atlantic LLC; Actavis Kadian LLC; Actavis Laboratories UT, Inc.; Actavis Laboratories FL, Inc. f/k/a Watson Laboratories, Inc.-Florida; Teva Pharmaceuticals USA, Inc.; and Cephalon, Inc.

Michael B. Hissam, Esq., J. Zak Ritchie, Esq., HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, Counsel for Petitioner Mylan Pharmaceuticals Inc.

Ronda L. Harvey, Esq., Fazal A. Shere, Esq., Marc F. Mignault, Esq., Gabriele Wohl, Esq., BOWLES RICE LLP, Charleston, West Virginia, Counsel for Petitioners The Kroger Co., Kroger Limited Partnership I, and Kroger Limited Partnership II.

Jon B. Orndorff, Esq., Kelly Calder Mowen, Esq., LITCHFIELD CAVO, LLP, Barboursville, West Virginia, Counsel for Petitioner Noramco, Inc.

Keith A. Jones, Esq., JONES LAW GROUP, PLLC, Charleston, West Virginia, Counsel for Petitioner Anda, Inc.

Rita Massie Biser, Esq., Moore & Biser PLLC, South Charleston, West Virginia, Counsel for Petitioner Henry Schein, Inc.

Neva G. Lusk, Esq., Tai Shadrick Kluemper, Esq., SPILMAN THOMAS & BATTLE, PLLC, Charleston, West Virginia, Elbert Lin, Esq., HUNTON ANDREWS KURTH LLP, Richmond, Virginia, Counsel for Petitioner Walmart Inc. and Wal-Mart Stores East, LP.

Bryant J. Spann, Esq., Robert H. Akers, Esq., THOMAS COMBS & SPANN, PLLC, Charleston, West Virginia, Counsel for Petitioners Walgreen Co. and Walgreens Boots Alliance, Inc.

Carte P. Goodwin, Esq., Joseph M. Ward, Esq., Alex J. Zurbuch, Esq., FROST BROWN TODD LLC, Charleston, West Virginia, Counsel for Petitioners CVS Indiana L.L.C.; CVS Rx Services, Inc.; CVS TN Distribution, L.L.C.; CVS Pharmacy, Inc.; and West Virginia CVS Pharmacy, L.L.C.

Christopher D. Pence, Esq., Wm. Scott Wickline, Esq., Hardy Pence PLLC, Charleston, West Virginia, Sarah M. Benoit, Esq., ULMER & BERNE LLP, Columbus, Ohio, Counsel for Petitioners Amneal Pharmaceuticals LLC; Amneal Pharmaceuticals of New York, LLC; and Impax Laboratories, LLC.

Stephen D. Annand, Esq., Keith J. George, Esq., Marisa R. Brunetti, Esq., Robinson & McElwee, PLLC, Charleston, West Virginia, Counsel for Petitioners Mallinckrodt LLC; Mallinckrodt Brand Pharmaceuticals, Inc.; Mallinckrodt Enterprises LLC; and SpecGX LLC.

Marc E. Williams, Esq., Robert L. Massie, Esq., Jennifer W. Winkler, Esq., NELSON MULLINS RILEY & SCARBOROUGH LLP, Huntington, West Virginia, Counsel for Petitioners Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Janssen Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals, Inc.; and Johnson & Johnson.

William R. Slicer, Esq., Shuman McCuskey Slicer PLLC, Charleston, West Virginia, Counsel for Petitioners Abbott Laboratories and Abbott Laboratories, Inc.

John H. Mahoney II, Esq., DINSMORE & SHOHL LLP, Huntington, West Virginia, Counsel for Petitioner Fruth Pharmacy, Inc.

Todd A. Mount, Esq., SHAFFER & SHAFFER, PLLC, Madison, West Virginia, Counsel for Petitioner H.D. Smith LLC f/k/a H.D. Smith Wholesale Drug Company.

Tim J. Yianne, Esq., Patricia M. Bello, Esq., LEWIS BRISBOIS BISGAARD & SMITH LLP, Charleston, West Virginia, Counsel for Petitioners Allergan Finance, LLC f/k/a Actavis, Inc. f/k/a Watson Pharmaceuticals, Inc.; Allergan Sales, LLC; Allergan USA, Inc.; and Warner Chilcott Sales (US), LLC.

Lindsay S. See, Esq., Solicitor General, Ann L. Haight, Esq., Deputy Attorney General, Vaughn T. Sizemore, Esq., Deputy Attorney General, Abby G. Cunningham, Esq., Assistant Attorney General, Charleston, West Virginia, Linda Singer, Esq., Elizabeth Smith, Esq., Motley Rice LLC, Charles R. "Rusty" Webb, The Webb Law Centre, PLLC, Charleston, West Virginia, Counsel for Respondent State of West Virginia ex rel. Patrick Morrisey, Attorney General.

Anthony Majestro, Esq., Powell & Majestro, PLLC, Charleston, West Virginia, Paul T. Farrell, Jr., Esq., Farrell Law, Huntington, West Virginia, Robert P. Fitzsimmons, Esq., Clayton J. Fitzsimmons, Esq., Mark A. Colantonio, Esq., FITZSIMMONS LAW FIRM PLLC, Wheeling, West Virginia, Letitia N. Chafin, Esq., THE CHAFIN LAW FIRM, PLLC, Williamson, West Virginia, Kevin C. Harris, Esq., Eric J. Holmes, Esq., LAW OFFICES OF HARRIS & HOLMES, PLLC, Ripley, West Virginia, Anne McGinness Kearse, Esq., Natalie Deyneka, Esq., MOTLEY RICE LLC, Mount Pleasant, South Carolina, Counsel for Respondent Counties and Municipalities.

Stephen B. Farmer, Esq., FARMER, CLINE & CAMPBELL, PLLC, Charleston, West Virginia, Timothy R. Linkous, Esq., LINKOUS LAW, PLLC, Morgantown, West Virginia, Counsel for Respondent Hospitals.

WALKER, Justice:

Beginning in 2017, various cities, counties, hospitals, and the State of West Virginia sued manufacturers and distributors of prescription opioid pain medication and other defendants. This Opioid Litigation is now more than eighty lawsuits pending before the Mass Litigation Panel. In the consolidated petitions before us, Petitioners are defendants in the Opioid Litigation who ask this Court for extraordinary relief prohibiting enforcement of the 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. Respondents, who are plaintiffs in the Opioid Litigation, urge us not to disturb these 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. 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.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2019, this Court referred five cases filed by West Virginia county commissions against manufacturers and distributors of prescription opioid pain medication and other defendants to the Panel, pursuant to Rule 26.06(c)(3) of the West Virginia Trial Court Rules (the Opioid Litigation).¹ The Panel consists of seven active or senior status circuit court judges, appointed by the Chief Justice with the approval of this Court. Its function is to efficiently manage and resolve mass litigation, like the Opioid Litigation, which now includes more than eighty lawsuits brought by the State of West Virginia, counties, municipalities, and hospitals against several categories of defendants and in various combinations.

All Petitioners are defendants in the Opioid Litigation. All Respondents are plaintiffs in the Opioid Litigation. For the sake of clarity, we refer to Petitioners, collectively as "Defendants," and Respondents, collectively, as "Plaintiffs." Where a particular issue pertains only to the State, or does not pertain to the State, we say so.

During a status conference on December 6, 2019, the Panel proposed that the parties consider resolving all public nuisance claims (liability only) in a non-jury trial, to be conducted before trying remedies for the nuisance claims or any other claims. The Panel acknowledged that Camden-Clark Memorial Hospital Corp. v. Turner² ( Camden-Clark ) may limit its ability to try an equitable claim before allowing a jury to decide related, legal claims. Specifically, the Panel stated:

Injunctions regularly are decided by courts. It is an equitable type remedy ordinarily that wouldn't be entitled to a jury trial. It would be decided by the court.

The [c]ourt would determine what the proper abatement is. [The Federal District Court for the Northern District of Ohio] is dealing with that. He took the position, as I understand it, that there is no absolute right to a jury trial, but he decided to give them one.

Well, we haven't decided that. We have a case, [ Camden-Clark ], that says where there are legal issues coupled with injunctive -- a request for injunctive relief, the legal issue, if it is to be tried by a jury, it is to go first.

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Now right now the question is well, are our hands tied under [ Camden-Clark ]?

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Then we will finish the matter when that is complete and set the rest of it aside for the time being or you can rely on [ Camden-Clark ] and say, no, I am not going to do it, that this is going to be a war to the bitter end.

Still, the Panel enco...