Seventh Amendment Jury Right Triggered When “Public-Nuisance Abatement” Seeks Compensation for Downstream Opioid Harms

Introduction

In re: EXPRESS SCRIPTS, INC. is a published Fourth Circuit mandamus decision arising from a West Virginia opioid public-nuisance suit brought by 120 local governments against Express Scripts, a pharmacy benefit manager. Plaintiffs alleged Express Scripts contributed to an “oversupply” of opioids and sought an injunction requiring Express Scripts to fund an “abatement fund” addressing not only the oversupply itself, but also addiction treatment, education, and community rehabilitation. Express Scripts demanded a jury trial; the district court denied the demand and set a bifurcated bench trial with a “statewide abatement trial” remedial phase. Express Scripts petitioned for mandamus, arguing (1) denial of its Seventh Amendment jury-trial right and (2) the impropriety of a statewide remedy structure.

The Fourth Circuit granted the petition in part, holding Express Scripts is entitled to a jury because the relief sought is, in substance, legal (compensatory) rather than historically equitable abatement.

Summary of the Opinion

  • Mandamus and jury trials: Although mandamus is “drastic,” it is the proper vehicle in this circuit to challenge an improper denial of a jury trial. (In re Lockheed Martin Corp.; Dairy Queen, Inc. v. Wood; Beacon Theatres, Inc. v. Westover).
  • Statewide trial order: The court expressed concern about a “statewide” abatement trial potentially sweeping beyond party-specific relief, citing Trump v. CASA, Inc. (and Kinney-Coastal Oil Co. v. Kieffer) on the difference between “complete relief” and “universal relief,” but denied mandamus on that issue because Express Scripts could raise any overbroad remedy on direct appeal.
  • Seventh Amendment holding: The court held that the Seventh Amendment requires a jury unless the claim and—most importantly—the remedy is one that would have been awarded in equity in 1791. In public nuisance, equity historically could abate (stop/remove) the nuisance condition itself, but could not award monetary relief designed to compensate for downstream harms. Plaintiffs’ requested “abatement fund,” including addiction treatment and education, is compensation for downstream harms and thus a legal remedy requiring a jury trial.

Analysis

Precedents Cited

1. Mandamus framework and the special jury-trial rule

  • In re Murphy-Brown, LLC (quoting Cheney v. U.S. Dist. Ct.) supplies the ordinary three-part mandamus test: no other adequate means, clear and indisputable right, and appropriateness under the circumstances.
  • In re Chicago, R.I. & P. Ry. Co. is invoked for the general proposition that mandamus typically requires the absence of an adequate remedy by appeal, and it is used to deny mandamus on the “statewide trial” issue (because appeal later is adequate).
  • In re Lockheed Martin Corp., together with Dairy Queen, Inc. v. Wood and Beacon Theatres, Inc. v. Westover, anchors the Fourth Circuit’s approach: mandamus is not merely available but is the proper route to vindicate an improperly denied Seventh Amendment jury right.

2. Seventh Amendment test: history, law/equity, and remedy primacy

  • Dimick v. Schiedt and Parsons v. Bedford provide the foundational premise that the Seventh Amendment “preserves” the 1791 jury-trial boundary between law and equity.
  • Tull v. United States and Curtis v. Loether supply the canonical two-step inquiry: (i) historical analog to 18th-century English actions, and (ii) the nature of the remedy (law vs equity), with the remedy inquiry “more important.”
  • Chauffeurs, Teamsters & Helpers, Loc. No. 391 v. Terry, Granfinanciera, S.A. v. Nordberg, Feltner v. Columbia Pictures Television, Inc., and the Fourth Circuit’s Israelitt v. Enter. Servs. LLC are cited to situate the test in modern doctrine, while maintaining its 1791 anchor.
  • SEC v. Jarkesy is central to the opinion’s methodology: it is read to make the remedy’s legal character “all but dispositive,” with historical analogy used mainly as confirmation.

3. Label-versus-substance principle for remedies

  • Dairy Queen, Inc. v. Wood is used to reject artful pleading: the jury right cannot “depend upon the choice of words used in the pleadings.” Courts must examine the actual function of the requested relief, not the label “abatement.”
  • Simler v. Conner is invoked to stress that even in diversity, whether a claim is “legal or equitable” for Seventh Amendment purposes is a matter of federal law characterization, not state labels.

4. Money can be equitable—so the court draws a functional line

  • Great-West Life & Annuity Ins. Co. v. Knudson supports the defining feature of legal damages: money “to compensate the plaintiff for loss resulting from the defendant’s breach of legal duty.”
  • The court acknowledges that monetary relief is not automatically legal, citing Ellet Bros. v. U.S. Fidelity & Guar. Co. and other circuits’ decisions (United States v. Apex Oil Co.; In re Peabody Energy Corp.; United States v. Price)—but emphasizes the key distinction: whether payment is measured by the cost of eliminating the nuisance condition itself (equitable) or by compensating for downstream harms (legal).

5. Public nuisance and West Virginia opioid litigation context

  • City of Huntington v. AmerisourceBergen Drug Corp. is the immediate backdrop: it predicted that, under West Virginia law, “abatement” may include a defendant paying money to remediate harmful conditions, including large-scale opioid treatment and rehabilitation programming.
  • The panel explains that Huntington’s characterization of that remedy as “equitable” for state-law purposes does not resolve the Seventh Amendment question, which turns on what English equity could award in 1791.
  • The opinion notes Huntington’s public-nuisance elements trace to State ex rel. Smith v. Kermit Lumber & Pressure Treating Co. and situates Huntington as an Erie prediction under Erie R.R. Co. v. Tompkins (and the circuit’s adherence principle in Stahle v. CTS Corp.).

6. Historical nuisance authorities: equity abates; law compensates

To show what “abatement” meant in equity at the Founding, the court relies on a line of English nuisance cases and treatises illustrating a consistent remedial limitation: equity stops/removes the nuisance condition; it does not compensate victims for downstream harms.

  • Ryder v. Bentham (Hardwicke) is used for the proposition that equity’s interposition is “by no means ancillary to the mere recovery of damages.”
  • Attorney General v. Parmeter, Attorney General v. Richards, and Attorney General v. Johnson are cited as public-nuisance examples where equity orders removal and restraint, not compensatory payments.
  • The opinion contrasts this with law-court damages decisions applying the “special injury” rule, including Rose v. Miles and earlier/later authorities (Hart v. Basset; Iveson v. Moore; Wilkes v. Hungerford Mkt. Co., etc.).
  • Spencer v. London & Birmingham Railway Co. (and Sampson v. Smith) exemplify the separation: Chancery can enjoin obstruction but will not award “loss and damages” that belong in an action at law.

Legal Reasoning

  1. Start with the remedy (Jarkesy’s influence): Because public nuisance historically could appear in both law and equity, the “historical analog” prong is not particularly informative. The court therefore prioritizes the second prong: what relief is sought, and is that relief of the sort equity could award in 1791?
  2. Define Founding-era equitable abatement narrowly: Equity’s remedial power in public nuisance was “one thing—and only one thing”: stop/remove the nuisance condition (e.g., remove a wharf encroachment; stop construction). It did not pay for resulting injuries or broader social consequences.
  3. Apply label-versus-substance scrutiny (Dairy Queen): Plaintiffs’ use of the word “abatement” is not dispositive. The court examines plaintiffs’ description of the proposed fund (modeled on Huntington) and notes it includes addiction treatment, rehabilitation, education, and community programs.
  4. Classify the requested fund as compensation for downstream harms: The court draws a sharp functional line:
    • Removing the “pollutant” (ending the oversupply/diversion) resembles historical abatement.
    • Funding treatment, education, and rehabilitation responds to the injuries caused by the oversupply—downstream harms—thus resembling damages that were historically legal.
  5. Reject “forward-looking” as a proxy for equity: Prospective expenditures can still be legal damages (e.g., future medical costs). The court cites its own Sommerville v. Union Carbide Corp. discussion of medical monitoring costs as “damages” to illustrate that the time orientation of the expenditure does not decide the law/equity classification.
  6. Conclusion on Seventh Amendment entitlement: Because the requested remedy would not have been awarded in a court of equity in 1791, it is legal in nature, and Express Scripts is constitutionally entitled to a jury trial.

Impact

  • Constrains “equity” framing in opioid nuisance litigation: The decision signals that plaintiffs cannot avoid a jury by styling large compensatory payment programs as “abatement,” especially where the requested fund targets treatment, education, and rehabilitation rather than the elimination of the nuisance condition itself.
  • Raises stakes for abatement-plan design: Plaintiffs seeking to preserve a bench trial may attempt to cabin relief to measures closely tied to removing the nuisance-constituting condition (here, the oversupply/diversion itself), while disclaiming compensatory components. The opinion expressly notes the result might differ if plaintiffs disclaimed the legal portions of the Huntington-style remedy.
  • Strengthens remedy-centric Seventh Amendment analysis post-Jarkesy: By treating remedy characterization as effectively dispositive in this setting, the Fourth Circuit provides a roadmap for defendants to demand juries in cases seeking substantial monetary “equitable” relief that resembles compensation.
  • Leaves “statewide relief” limits for later review: While the court flagged concerns under Trump v. CASA, Inc., it declined immediate mandamus. Practically, this suggests defendants must often wait for a final remedial order to challenge overbreadth—unless the jury-trial right is at stake.

Complex Concepts Simplified

Mandamus
An extraordinary appellate writ used to correct certain serious district-court errors immediately. Ordinarily hard to obtain, but appellate courts use it to protect the constitutional right to a civil jury trial when a district court improperly denies one.
Seventh Amendment: “Suits at common law”
The Amendment preserves the 1791 boundary: legal claims with legal remedies (especially compensatory damages) generally require juries; equitable claims seeking equitable remedies (like injunctions) typically do not.
Law vs. Equity (1791)
“Law” courts awarded damages. “Equity” courts (Chancery) issued injunctions and similar orders to prevent or stop wrongdoing. The modern merger of courts does not merge the Seventh Amendment’s historical test.
Public nuisance as “offense” vs. “tort”
Historically, public nuisance could be pursued (a) as a public wrong to stop/remove the offending condition (equity abatement or criminal prosecution), or (b) as a basis for a private damages action by someone who suffered a “special injury” beyond the public at large.
“Abatement fund”
A pot of money ordered to be paid to address a nuisance. Under this decision, if the fund is aimed at compensating for downstream harms (treatment, education, rehabilitation), it functions like legal damages and triggers a jury right—even if state law calls it “abatement.”
Erie prediction
In diversity cases, federal courts apply state substantive law. If the state’s highest court has not decided an issue, a federal appellate court predicts what it would do (as in City of Huntington v. AmerisourceBergen Drug Corp.), and that prediction binds lower federal courts unless the state court later says otherwise.

Conclusion

The Fourth Circuit’s central holding is a remedy-focused Seventh Amendment rule for modern public-nuisance litigation: when plaintiffs’ requested “abatement” goes beyond eliminating the nuisance condition and instead funds programs that address the downstream consequences of the nuisance—such as opioid addiction treatment, education, and community rehabilitation—the relief is, in substance, legal compensation. Because such relief was not available in equity in 1791, the defendant is constitutionally entitled to a jury trial. The court therefore granted mandamus to protect the jury right, while leaving challenges to potentially overbroad “statewide” remedies for ordinary appellate review.