FILED
June 11, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0694 – State of West Virginia ex rel. Amerisourcebergen Drug Corp., et al. v. The
Honorable Alan D. Moats;
No. 20-0751 – State of West Virginia ex rel. Johnson & Johnson, et al. v. The Honorable
Alan D. Moats and State of West Virginia ex rel. Patrick Morrisey, Attorney General.
Wooton, Justice, concurring, in part, and dissenting, in part:
I concur in the Court’s judgment that the Mass Litigation Panel’s decision to
hold a bench trial on the respondents’ public nuisance claims was not “so plainly in
contravention of a clear legal mandate as to merit issuance of the extraordinary remedy of
prohibition.” However, I do not concur in the Court’s analysis, which gives far too much
credence to legal arguments whose resolution, at least in the early stages of this litigation,
should be left in the capable hands of the Panel. Further, I respectfully dissent from the
remainder of the Court’s decision, for the reasons that follow.
For more than a decade, West Virginia Trial Court Rule 26 has provided “a
process for efficiently managing and resolving mass litigation” by referral of such litigation
to a Mass Litigation Panel. The Panel consists of seven highly qualified and experienced
active or senior status circuit court judges – men and women willing and able to take on
the formidable task of handling these complex cases, with circuit judges taking on the task
in addition to handling the myriad other cases on their dockets, including civil and criminal
cases, abuse and neglect cases, original jurisdiction matters, appeals from family court and
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magistrate court, and all of the administrative duties that fall within their remit. In order
to enable the Panel to accomplish the duties assigned to its members, Trial Court Rule 26
was developed to equip members with the tools they require to handle complex, multi-
party, multi-issue litigation – and the authority to utilize those tools. In particular, Rules
26.05(a) and (f) require the Panel members to “develop and implement case management
and trial methodologies to fairly and expeditiously resolve Mass Litigation referred to the
Panel by the Chief Justice[,]” and to “take such action as is reasonably necessary and
incidental to the powers and responsibilities conferred by this rule or by the specific
directive of the Chief Justice[.]” Consistent with this broad grant of authority, this Court
has held that the “management of [mass tort] cases cannot be accomplished without
granting the trial courts assigned these matters significant flexibility and leeway with
regard to their handling of these cases.” In re: Tobacco Litig., 218 W. Va. 301, 306, 624
S.E.2d 738, 743 (2005) (citing State ex rel. Mobil Corp. v. Gaughan, 211 W. Va. 106, 111,
563 S.E.2d 419, 424 (2002)).
In the instant case, however, the majority has seen fit to wade into the
litigation from lofty chambers situated high above the arena in which this complex case,
involving dozens of litigants and dozens of attorneys, will actually be tried. The majority
has determined that the Panel is required to hold a jury trial on all issues common to the
respondents’ equitable and legal claims before it holds a bench trial on their purely
equitable public nuisance claim, which necessarily leads to the conclusion ‒ although the
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majority opinion is somewhat opaque on this point ‒ that the Panel must reconsider its
previous denial of petitioners’ motions for leave to file notices of third party fault pursuant
to West Virginia Code §§ 55-7-13d(a)(1), (2) (2016). In this latter regard, petitioners state
that the non-parties may include prescribing practitioners; individuals involved in criminal
drug trafficking; users of illegally or wrongfully obtained prescription drugs; hospitals;
pharmacy benefit managers; federal, state and local government entities charged with
regulation and/or enforcement of controlled substances; health insurers; wholesale
pharmaceutical distributors; and pharmaceutical manufacturers. Thus, the trial mandated
by the majority’s opinion will feature dozens of defendants attempting to shift the blame
to dozens – perhaps hundreds – of other entities and individuals. One can only imagine
the verdict form that the jury will be asked to navigate at the conclusion of a trial which
can reasonably be expected to last for years.
It has long been established in our law that public nuisance claims are
equitable in nature, Town of Weston v. Ralston, 48 W. Va. 170, 36 S.E.2d 446 (1900), and
thus triable by the court without a jury. Weatherholt v. Weatherholt, 234 W. Va. 722, 769
S.E.2d 872, 874 (2015). 1 Petitioners do not really argue with this general proposition;
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“Where already, at the time of the adoption of the Constitution, equity exercised
jurisdiction in a certain matter, the provision of the Constitution guaranteeing trial by jury
does not relate to or give right to trial by jury in suits in equity involving such matter.”
Weatherholt, 234 W. Va. at 723, 769 S.E.2d at 874, Syl. Pt. 5 (citing Davis v. Settle, 43 W.
Va. 17, 26 S.E. 557 (1896)).
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rather, they contend that because respondents are seeking a monetary recovery for the costs
of preventing and/or abating the nuisance, the damages sought are legal, not equitable. The
majority deems this a close question, despite the fact that the weight of authority in this
country is to the contrary. See, e.g., In re Nat’l Prescription Opiate Litig., No. 1:17-MD-
2804, 2019 WL 4194272, at *3 (N.D. Ohio Sept. 4, 2019) (“Unlike tort damages that
compensate an injured party for past harm, abatement is equitable in nature and provides a
prospective remedy that compensates a plaintiff for the costs of rectifying the nuisance.”).
The majority further overlooks the fact that the appendix record in this case does not
support the petitioners’ characterization of the damages sought as legal. Although the
respondents’ description of the damages in their complaint can fairly be characterized as
vague – “damages and costs necessary to eliminate the hazard to public health and safety
and to abate, or cause to be abated, the public nuisance caused by the opioid epidemic” –
West Virginia is a notice pleading state and it is early days in the underlying litigation. As
the majority acknowledges in its opinion at note 56, this Court’s Rules of Civil Procedure
give a defending party a “liberal opportunity for discovery” to ascertain the particulars of
the opposing party’s claims both as to liability and damages. See Sticklen v. Kittle, 168
W. Va. 147, 163, 287 S.E.2d 148, 157 (1981). In the instant case, given the Presiding
Judge’s grant of a year for the parties to engage in discovery prior to trial on the public
nuisance claims, there would have been ample time for petitioners to pin respondents down
on the particulars of damages with interrogatories, requests for production, and depositions:
what form(s) will the abatement take? How will the funds be distributed, to whom, and for
what? How are you putting a price tag on these costs? Thereafter, the court could have
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required respondents to describe the damages they seek, with particularity, in their pre-trial
memorandum, all of which would have allowed the court to sort out the equitable wheat
from the legal chaff before the trial begins. I am in complete accord with the majority
opinion on this point.
All of this is effectively made moot, however, by the majority’s holding that
the petitioners are entitled to a jury trial on all factual and legal issues that are common to
the equitable and legal claims, prior to a bench trial on the equitable claims. I acknowledge
that there is precedent to this effect:
“The usual practice is to try the legal issues to the jury and to
try the equitable issues to the court. Where there are some
issues common to both the legal and equitable claims, the order
of trial must be such that the jury first determines the common
issues. The court may, if it chooses, submit all the issues to the
jury. There is no constitutional right to a trial without a jury
and reversible error cannot be predicated upon the submission
of equitable issues of fact to a jury.” We adhere to the
principles so expressed[.]
W. Va. Hum. Rts. Comm'n v. Tenpin Lounge, Inc., 158 W. Va. 349, 354, 211 S.E.2d 349,
352–53 (1975) (citing 2B Barron and Holtzoff, Federal Practice and Procedure § 873, p.
32 (Rules ed. 1961)). However, in mass litigation cases where this Court’s stated objective
is to give Panel judges “flexibility and leeway with regard to their handling of these
cases[,]” In re: Tobacco Litig., 218 W. Va. at 306, 624 S.E.2d at 743, it is inimical to those
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goals for us to step in – particularly here, at the pleading stage 2 of a case which the majority
concedes may well be the most complex in this State’s history – to mandate procedures
that the Panel must follow. At this point, before the first deposition has been taken or the
first interrogatory answered, the issues alleged to be common to both the equitable and
legal causes of action are described by the petitioners in words that could most charitably
be termed general. The bottom line: it’s simply too early to know what the disputed issues
of material fact (if any) will be, and it’s simply too early for this Court to inject itself into
the litigation.
Again, I 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, and to do so in a manner that
preserves petitioners’ right to a jury trial on all issues triable to a jury. 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.
Accordingly, I concur, in part, and respectfully dissent, in part.
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Of note, a major reason these cases are still at the pleading stage is that since their
referral to the Mass Litigation Panel – on petitioners’ motions -- the petitioners have
challenged virtually every ruling made by the Panel. The instant petitions for extraordinary
relief are numbers six and seven.
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