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 Company, et al. v.
The Honorable Alan D. Moats, Lead Presiding Judge, Opioid Litigation, Mass Litigation
Panel, et al.
AND
No. 20-0751, State of West Virginia ex rel. Johnson & Johnson, et al. v. The Honorable
Alan D. Moats, Lead Presiding Judge, Opioid Litigation, Mass Litigation Panel, et al.
ARMSTEAD, Justice, concurring, in part, and dissenting, in part, in 20-0694 and
dissenting in 20-0751, joined by JENKINS, Chief Justice:
It is undeniable that the opioid crisis in our State has not only had a
devastating impact on our State’s children and families, but also on our cities, towns,
communities and counties, as neighborhoods seek to combat the impact of rampant
substance abuse. The mandamus action currently before the Court brings front and center
many of the unique legal questions and challenges courts will undoubtedly be asked to
resolve as local governments across the country seek redress. The nature and character of
the relief sought in the current action does not easily lend itself to clear application of the
legal theories of recovery that have governed public nuisance claims for decades. Instead,
as is clearly demonstrated by the facts and legal theories presented in this matter, the lines
between injunctive and monetary damages – indeed the lines between legal and equitable
theories of recovery – are blurred. In applying the traditional theories of public nuisance
to the present case, Plaintiffs’ efforts to neatly package the requested recovery as
“injunctive” relief equates to the proverbial conundrum of attempting to place a square peg
into a round hole.
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Indeed, the majority clearly recognizes that this matter is not simply a
nuisance action but instead includes theories of recovery that so significantly overlap with
other monetary and legal causes of action as to require a jury trial. I fully agree with the
majority’s conclusion that, to proceed as if this case is purely a nuisance action, would
deprive Defendants of their fundamental right to have the intertwined claims against them
determined by a jury.
However, having determined that Plaintiffs’ public nuisance and legal claims
are so intertwined that a jury trial is necessary to protect the fundamental rights of
Defendants, the majority has inexplicably denied the same Defendants their statutory right
to allocate fault pursuant to West Virginia Code § 55-7-13a to 13d (2015 & 2016),
(hereinafter, the “2015 Act”). Accordingly, I write separately to concur in the majority’s
finding that there must be a jury trial and to dissent as to the majority’s denial of a writ of
prohibition enjoining the Panel from precluding application of the 2015 Act and striking
Defendants’ Notices of Non-Party Fault.
The 2015 Act encompasses House Bill 2002 which was signed into law on
March 5, 2015 and became effective on May 25, 2015. The 2015 Act abolished joint and
several liability and adopted comparative fault standards. Even prior to its effective date,
this Court recognized that the 2015 Act comprised “a series of new statutes which in fact
do purport to fully occupy the field of comparative fault and the consideration of ‘the fault
of parties and nonparties to a civil action[.]’” Modular Bldg. Consultants of W. Virginia,
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Inc. v. Poerio, Inc., 235 W. Va. 474, 486 n.12, 774 S.E.2d 555, 567 n.12 (2015).
Specifically, the 2015 Act provides:
In any action based on tort or any other legal theory
seeking damages for personal injury, property damage, or
wrongful death, recovery shall be predicated upon principles
of comparative fault and the liability of each person, including
plaintiffs, defendants and nonparties who proximately caused
the damages, shall be allocated to each applicable person in
direct proportion to that person’s percentage of fault.
W. Va. Code § 55-7-13a. As the majority opinion notes, the 2015 Act allows for “assessing
percentages of fault” and mandates that the “‘trier of fact shall consider the fault of all
persons who contributed to the alleged damages,’ including nonparties.” (citations in
majority opinion omitted). The import of this process is that “any recovery by a plaintiff
shall be reduced in proportion to the percentage of fault chargeable to such nonparty.” W.
Va. Code § 55-7-13d(a)(3). This means that the 2015 Act expressly allows a party to assert
an “empty-chair defense.”
In order to determine if the claims asserted by Plaintiffs against Defendants
are subject to the 2015 Act, it is useful for us to review the nature of such claims and the
remedies demanded by the Plaintiffs. Plaintiffs have asserted that their claims are nuisance
claims and have characterized the damages sought to be the costs of “abatement” of the
nuisance rather than “damages.” However, although the law relating to nuisance claims
has been slowly evolving, the general principle is that the remedy for nuisance claims is
the abatement of the nuisance itself, rather than monetary damages. Under the traditional
definition of abatement, nuisance claims seek court intervention to require one party to stop
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doing something that affects another. For example, when a business in and of itself is
lawful, but the business activity materially disturbs another’s use of their property, a court
may enjoin the activity. See Syllabus Point 5, Snyder v. Cabell, 29 W. Va. 48, 1 S.E. 241
(1886). Examples of conduct that may be enjoined include merry-go-rounds, see Town of
Davis v. Davis, 40 W. Va. 464, 466, 21 S.E. 906, 906 (1895), and loud singing, talking,
dancing, and opening and shutting doors. See Medford v. Levy, 31 W. Va. 649, 651-52, 8
S.E. 302, 303-4 (1888).
As our law of nuisance has evolved, this Court has held that certain damages
are recoverable in a nuisance claim:
A court of equity, having jurisdiction in such case to
abate the nuisance, may assess, and enter a decree for, such
damages, whether the defendants be jointly or separately liable
therefor, taking care to decree them on the basis of the legal
liability of the parties; but the jurisdiction so to do is merely
incidental to the exercise of the jurisdiction to abate the
nuisance.
Syllabus Point 5, McMechen v. Hitchman-Glendale Consol. Coal Co., 88 W. Va. 633, 107
S.E. 480 (1921) (emphasis added). However, the damages sought in this matter are not
merely “incidental,” but could total into the billions of dollars, making them not only
consequential but monumental. Indeed, Plaintiffs do not ask that the manufacture,
prescription, delivery, marketing, sale, and/or use of these products be enjoined in the State
of West Virginia. Instead, they seek monetary compensation for the damages allegedly
caused by Defendants.
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This effort to characterize monetary damages as merely the cost of
“abatement” has been discussed by at least one commentator, observing that:
Plaintiffs who have sued based upon the theory of
public nuisance have also generally mischaracterized the
remedies available under public nuisance law. Although
public nuisance law permits governments to abate public
nuisances, the law does not traditionally award monetary
damages as a legal remedy to government plaintiffs.
Nathan R. Hamons, Addicted to Hope: Abating the Opioid Epidemic and Seeking Redress
from Opioid Distributors for Creating A Public Nuisance, 121 W. Va. L. Rev. 257, 268–
69 (2018) (footnotes omitted). This not a new issue, as was recognized more than eighty
years ago by the Tennessee Supreme Court:
The term nuisance, in legal parlance, has a very broad
and elastic signification. What is a nuisance must after all be
determined upon the facts shown in any particular case. In the
case before us, the theories of nuisance and negligence are so
closely woven together in the pleadings and in the argument
that it is difficult after all to determine which is the gravamen
of the action. Both theories are relied upon and neither is
wholly separate from the other.
Davidson Cty. v. Blackwell, 82 S.W.2d 872, 874 (1934).
The majority has correctly held that “Defendants have demonstrated that
extraordinary relief is warranted to preserve their right to try Plaintiffs’ legal claims to a
jury. To the extent that the public nuisance liability determination and Plaintiffs’ legal
claims present common issues, the order of trial must be such that the jury first determines
those common issues.” (emphasis added). Moreover, the majority bases its decision to
require a trial by jury, at least in part, on the fact that Plaintiffs essentially agree that there
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is an overlap of their legal and equitable claims. The majority expressly finds that
“[i]mportantly, Plaintiffs do not disagree with Defendants’ characterization of the overlap
of their public nuisance claims (liability only) and legal claims, nor do they contend that
those other claims are equitable and not legal. And, they do not protest that the legal claims
are entirely independent of their public nuisance claims (liability only).”
To the extent that Plaintiffs’ complaints clearly allege overlapping legal and
public nuisance claims, as the majority clearly found, they also clearly assert claims for
damages that fall within the 2015 Act. However, the majority opinion lets stand the Panel’s
determination that as to the nuisance claims, because such claims are equitable in nature,
the 2015 Act does not apply. As the majority cited, Plaintiffs’ complaints allege several
causes of action for which the factual bases are intertwined with their public nuisance
claims. Similarly, Plaintiffs’ demands for damages contained within their complaints
intertwine the remedies sought for such claims. For example, in Paragraph 823 of the
Complaint filed by the Doddridge County, Marion County, Monongalia County, Randolph
County, and Upshur County Commissions, Plaintiffs seek:
DAMAGES
823. As a direct and proximate result of the Defendants’
actions, conduct, and omissions, as set forth herein, Plaintiffs
have suffered and continue to suffer injury and damages,
including but not limited to, incurring excessive costs related
to diagnosis, treatment, and cure of abuse and/or addiction or
risk of addiction to opioids; bearing the massive costs of these
illnesses and conditions by having to provide necessary
resources for care, treatment facilities, and law enforcement
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associated with opioid addiction, abuse and diversion; and
property damage.
Significantly, the following paragraph of the County Commission Complaint, which
appears to be directed primarily, if not entirely, to Plaintiffs public nuisance claim,
demands as follows:
824. Plaintiffs have further suffered economic and
noneconomic damages, including 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, as well as any other damage as may be
available under West Virginia law.
(emphasis added). The County Commission Complaint concludes by demanding both
compensatory and punitive damages, as well as pre-judgment and post-judgment interest,
costs and attorney fees, and “[a]ny and all further relief as a court and/or jury deem just
and proper.” Notably absent is any demand for specific performance or request that any
action on the part of Defendants be enjoined or abated – demands that are traditional
remedies in public nuisance actions.
Likewise, in the Complaint filed by and on behalf of various hospitals, 1
Plaintiffs seek an “Award [of] compensatory damages in an amount sufficient to fairly and
1
On page “i” of the Table of Contents to the Hospital Complaint, the
Plaintiffs are identified as: Appalachian Regional Healthcare, Bluefield Regional Medical
Center, Charleston Area Medical Center, Davis Health System Affiliates, Grafton City
Hospital, Grant Memorial Hospital, Greenbrier Valley Medical Center, Jackson General
Hospital, Monongalia Health System Affiliates, Plateau Medical Center, Princeton
Community Hospital, West Virginia University Health System, Wetzel County Hospital,
and Williamson Memorial Hospital.
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completely compensate Plaintiffs for all damages; treble damages; punitive damages; pre-
judgment and post-judgment interest as provided by law, and that such interest be awarded
at the highest legal rate.” As for equitable relief, the Hospital Complaint seeks “equitable
relief against Defendants as the Court should find appropriate, including disgorgement of
illicit proceeds and other orders.” In the Hospital Complaint, Plaintiff hospitals seek
“compensatory damages . . . to compensate Plaintiffs.”
Of particular note is the fact that, in Paragraph 824 of the County
Commission Complaint, Plaintiffs state that they have suffered “economic and
noneconomic damages” related to their public nuisance claim. Not only is Plaintiffs’ use
of the word “damages” significant, these demands track, almost verbatim, the definition of
“Compensatory Damages” contained in the 2015 Act, which states: “‘Compensatory
Damages’ means damages awarded to compensate a plaintiff for economic and
noneconomic loss.” W. Va. Code § 55-7-13b.
As cited by Defendants in their Response in Opposition to Plaintiffs’ Motion
to Strike Defendants’ Notices of Non-Party Fault, filed before the Panel below, the United
States Supreme Court has held that the distinction between the term “damages” and other
monetary relief is largely “semantic.” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 49
n.7 (1989). Further, the Supreme Court has also held that “[a]lmost invariably . . . suits
seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay
a sum of money to the plaintiff are suits for ‘money damages,’ as that phrase has
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traditionally been applied, since they seek no more than compensation for loss resulting
from the defendant’s breach of legal duty.” Great-W. Life & Annuity Ins. Co. v. Knudson,
534 U.S. 204, 210 (2002).
The majority also discusses this Court’s decision in Realmark Dev., Inc. v.
Ranson, 214 W. Va. 161, 588 S.E.2d 150 (2003) when reaching its determination that
Defendants are entitled to a jury trial. The holding in Realmark, however, also supports a
finding that the 2015 Act applies in this case as well. Realmark involved a claim of unjust
enrichment, which this Court found is “based on the principles of equity.” Id., 214 W. Va.
at 164, 588 S.E.2d at 153. However, the Realmark Court held that “the remedy sought in
this case is a money judgment and, thus, is governed by law. In other words, ‘unjust
enrichment’ … is but the equitable reason for requiring payment for value of goods and
services received.” Id.. Similarly, in the present case, the mere fact that Plaintiffs have
characterized their demand for damages as “abatement” of a public nuisance does not
diminish the fact that they are demanding compensatory damages as envisioned by the
2015 Act. 2
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Plaintiffs also argue that the 2015 Act is inapplicable because their causes
of action accrued prior to the effective date of the Act. However, if their causes of action
accrued prior to the effective date of the 2015 Act, their claims may be time barred by the
applicable statute of limitations. “Where a tort involves a continuing or repeated injury,
the cause of action accrues at and the statute of limitations begins to run from the date of
the last injury or when the tortious overt acts or omissions cease.” Syllabus Point 11,
Graham v. Beverage, 211 W. Va. 466, 566 S.E.2d 603 (2002). Thus, if Plaintiffs are able
to establish a continuing tort that brings their actions within the statute of limitations, the
2015 Act is applicable because the date the statute of limitations would run is after the
effective date of the 2015 Act.
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The majority is correct in its determination that the presence of overlapping
legal and equitable claims removes this case from the traditional public nuisance scenario
and requires that Defendants be afforded their fundamental right to a trial by jury.
However, the majority’s denial of those same Defendants’ statutory rights to file notices of
non-party fault and avail themselves of the provisions of the 2015 Act is inherently
inconsistent with its holding that they are entitled to a jury trial. If, as the majority has
determined, “Defendants have demonstrated that extraordinary relief is warranted to
preserve their right to try Plaintiffs’ legal claims to a jury,” then such right to extraordinary
relief should also extend to their statutory right, as part of such jury trial, to identify non-
parties they believe may bear some responsibility for the actions alleged by Plaintiffs. This
is particularly true in light of the fact that the damages alleged by Plaintiffs, despite their
characterization of such damages as abatement, clearly fall within the definition of
compensatory damages contained in the 2015 Act. Damages are damages and Plaintiffs
seek to receive monetary compensation for their nuisance claims. There is no discernable
distinction between damages sought in legal claims and damages sought in Plaintiffs’
“equitable” claims for the purposes of the 2015 Act.
For the reasons stated above, the 2015 Act applies to Plaintiffs’ claims at
issue in this request for extraordinary relief and 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
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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.
I am authorized to state that Chief Justice Jenkins joins me in this separate
opinion.
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