Civil Procedure – Opioid epidemic defendant is entitled to jury trial

Where a company that was sued for its alleged role in the opioid epidemic sought a jury trial, which the trial court denied, a writ of mandamus issued. The relief sought by the plaintiffs included an “abatement fund” that would pay for addiction treatment, education and community rehabilitation. That kind of remedy would have been granted by courts of law in eighteenth-century England.

Background

Plaintiffs—120 local governments in West Virginia—brought a public-nuisance claim against Express Scripts. They allege that Express Scripts contributed to the oversupply of opioids in their communities. For their remedy, they seek an “abatement fund” that would pay not only for the removal of this oversupply, but also for addiction treatment, education and community rehabilitation.

Express Scripts demanded a jury trial, which the district court denied. Express Scripts then petitioned this court for a writ of mandamus to vindicate its right to a jury trial.

Statewide trial order

Although the district court disclaimed any intent to adjudicate the rights of non-party municipalities and counties, it nevertheless proposed to hear evidence on and fashion a single, statewide abatement remedy. Despite this tension, the court declines to issue the writ on this question. Should the district court ultimately enter relief that sweeps beyond what is necessary to provide plaintiffs redress, Express Scripts may challenge that remedy on direct appeal. So Express Scripts has not met the high bar required for mandamus relief on this issue.

Jury trial

To determine whether a suit triggers the Seventh Amendment’s guarantee, the court conducts two historical inquiries. First, it compares the action at issue to analogous eighteenth-century actions “brought in the courts of England prior to the merger of the courts of law and equity.” Second, and more importantly, it examines the remedy sought and asks whether it is the kind of remedy that would have been granted by courts of law or courts of equity in eighteenth-century England.

Law and equity courts provided starkly different remedies at the Founding. Courts of equity could provide injunctive relief designed to abate the public nuisance itself, while law courts provided damages to specially injured plaintiffs for the nuisance’s downstream harms. This framework resolves this case. The relief that plaintiffs seek is not limited to the sort of abatement recognized by equity in 1791. Rather, the proposed “abatement” fund includes the legal remedy of compensation for the downstream consequences of the alleged nuisance.

This court previously predicted that West Virginia’s modern abatement remedy could require a defendant to “pay money to fund efforts to eliminate the resulting harm to the public.” And the court made clear that an “abatement fund” can include money to provide treatment and rehabilitation for opioid addicts. But at the Founding, that sort of relief would have been quintessentially legal.

Plaintiffs’ description of their proposed relief shows that they seek not simply the elimination of the alleged oversupply of opioids, but also compensation for its downstream consequences. Asked to detail the abatement that his clients seek at oral argument, counsel stated that it would “eliminate the resulting harm” of Express Scripts’ alleged oversupply of opioids by providing “treatment” and “rehabilitation” for addicts. Although such funds may be recoverable under modern West Virginia public-nuisance law, in 1791 no court of equity would have had the power to grant them.

Plaintiffs also argue that their remedy is not damages because it is forward-looking. But that’s wrong. That a remedy looks forward does not necessarily make it equitable. Compensatory damages routinely include prospective components. The same is true of funds to provide addiction treatment and rehabilitation services to those allegedly harmed by the oversupply of opioids. The expenditure may lie in the future, but it compensates for harm suffered on account of the defendant’s past conduct. Such compensation, whether for past or future harms, was the province of the law courts, not the equity courts.

This court has ignored the first prong of the inquiry—whether claims analogous to plaintiffs’ would have been heard at law or in equity in eighteenth-century England. That is because, in the public-nuisance context, that inquiry is unhelpful. Thus, the second prong of the Seventh Amendment inquiry does all the work here.

Petition granted in part.

In re: Express Scripts, Inc., Case No. 25-2281, May 15, 2026. 4th Cir. (Richardson), from NDWVA at Wheeling (Bailey). Christopher George Michel for Petitioner. Anthony J. Majestro for Respondents. VLW 026-2-177. 26 pp.

Full-Text Opinion
VLW 026-2-177