Jury Trial is There if Corporations Need it, Appeals Court Finds in WV Opioid Case

Corporations facing high-profile negligence lawsuits have been known to request a bench trial—held before a judge only and without the risks of plaintiffs’ lawyers playing on the emotions of a 12-person jury.

But in West Virginia, the pharmacy benefits manager and mail-order pharmaceutical giant known as Express Scripts went the other route. The company demanded a jury in a lawsuit brought by 120 local governments that charged the PBM had contributed to the oversupply of opioid drugs that have plagued many residents.

“While purporting to represent the interests of their residents, (the West Virginia cities and counties) strain mightily to keep this case away from them,” Express Scripts’ attorneys wrote in a brief.

Last week, a federal appeals court agreed, overturning a lower court’s denial of a jury trial. The U.S. 4^th Circuit Court of Appeals said that the right to a jury trial, even for a giant corporation, is enshrined in the U.S. Constitution’s Seventh Amendment. The judges explained at length that English courts more than 250 years ago unequivocally established that juries should hear cases involving questions of legal remedy and monetary damages—just as the West Virginia governments are seeking in this case.

“The right to a jury trial was ‘the glory of the English law,’” appellate court Judge Julius Richardson wrote for the three-judge panel.

The judge was quoting a 1768 treatise by famous English jurist William Blackstone. The panel went on to point out that anti-Federalists at the birth of the American republic had demanded the Seventh Amendment because they were deeply distrustful of a powerful federal judiciary and politically insulated judges.

Although parties in criminal or civil cases can agree to a judge-only trial, the 4^th Circuit opinion noted that English law and U.S. law have generally reserved bench trials only for equity matters or actions that seek injunctions or abatement of actions.

“The Seventh Amendment entitles litigants to a jury trial unless the claim would have been heard, and the remedy awarded, by courts of equity at the Founding,” the opinion reads. “In public nuisance cases, only courts of law could provide money damages to redress the downstream harms of a public nuisance.”

Part of the relief that West Virginia communities are seeking includes funding to treat addicts and to educate the public about opioid risks. That is a classic legal remedy, suitable for a jury, the court explained.

The cities’ proposed remedy “thus goes beyond what a court of equity could have provided in 1791. So Express Scripts is entitled to a jury trial,” the appellate court found.

Express Scripts, an Evernorth Health Services company, and its attorneys had argued that to decide otherwise would be setting a dangerous blueprint for other tort actions.

“…It will undermine the rights of other litigants who ‘may be involved in future legal proceedings,’ by creating a novel precedent for statewide trials by plaintiffs who lack standing to bring them, against defendants who are unable to defend them,” the PBM’s lawyers wrote in their petition to the appeals court.

It’s uncertain if the local governments will ask the U.S. Supreme Court for further review. If not, the case will return to the U.S District Court for Northern Virginia for a jury trial or settlement.

The suit is one of thousands of lawsuits brought by local and state governments against opioid manufacturers, distributors and PBMs around the country.

Related: US Appeals Court Revives $2.5 Billion Opioid Lawsuit in West Virginia

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