Trial formats for West Virginia opioid cases among issues pending with state Supreme Court

CHARLESTON, W.Va. — Pending decisions from the state Supreme Court will determine the next steps in dozens of lawsuits accusing drug manufacturers, drug distributors and drug sellers of illegally fueling the opioid crisis in West Virginia.

On Wednesday, justices heard arguments on multiple challenges to earlier decisions from the Mass Litigation Panel that was formed to oversee the cases en masse.

“This a complex case,” said Anthony Majestro, an attorney representing more than 60 West Virginia counties and cities.

“In fact, lots of people — defendants and plaintiffs and judges — have said this is among the most complex litigation ever brought in the history of the United States.”

Majestro was one of the six attorneys who participated in Wednesday’s arguments which lasted for 90 minutes in front of the state Supreme Court.

Also included were attorneys for the drug companies, Walmart and other pharmacies, the West Virginia Attorney General’s Office and hospitals.

One of the challenged decisions allows for bench trials as opposed to jury trials in certain cases.

Majestro was arguing for the ordered bench trials.

“We have a serious problem with opioids in this state, like the nation. My clients — the cities and counties and the governmental plaintiffs that are bringing these claims — are looking for the quickest way to solve that problem,” he said.

“The panel told us the quickest way is not a jury trial, it’s a bench trial. We don’t object to that.”

But Marc Williams, an attorney who was representing the drug manufacturers during Wednesday’s arguments, said it was an issue of due process.

“The plaintiffs have chosen to file 90-something lawsuits involving 90 defendants. That is a level of complexity that we’re not common to dealing with and the Mass Litigation Panel’s doing an admirable job in trying to get their hands around it,” Williams said.

“It is a matter of fundamental fairness and it is a matter of consistency with the policy that is set forth by the Legislature that all of the entities that bear any responsibility for the creation of the nuisance should have the opportunity to be heard and to have their fault or responsibility apportioned by a jury.”

Justice Beth Walker questioned whether the issues being challenged were coming up too early in what was expected to be a lengthy, in her words, “extremely complicated” process.

Albert Sebok, an attorney representing the drug distributors, addressed that.

“The plaintiffs’ complaint which they’re bound by mentions throughout ‘damages’ that they’re trying to seek, so we don’t think we’re too early at this point to make this foundational determination of whether we’re entitled to the right to a jury or not,” Sebok said.