Separate Trials On Liability And Damages Not Warranted

Ex parte Endo Health Solutions Inc., et al., [Ms. 1200470, Nov. 19, 2021] __ So. 3d __ (Ala. 2021). In an opioid crisis related case filed by a number of hospitals and related entities against manufacturers, distributors, and retail pharmacies, the Court (Sellers, J.; Shaw and Bryan, JJ., concur; Bolin, J., concurs specially; Wise and Stewart, JJ., concur in the result; Parker, C.J. and Mendheim, J., dissent; Mitchell, J., recuses) issues a writ of mandamus to the Conecuh Circuit Court directing the court to vacate a portion of its case management order, providing that “[t] he first trial on the public-nuisance claim is to involve ‘liability,’ and the second trial is to involve ‘special damage.’” Ms. *3.

The Court first rejects petitioners’ standing argument and explains “‘[t]he question whether the law recognizes the cause of action stated by a plaintiff is frequently transformed into inappropriate standing terms’ (quoting 13A Charles Alan Wright et al., Federal Practice & Procedure § 3531 (2008))). The defendants have not demonstrated that if the plaintiffs ultimately fail to prove that they have suffered special damage, then they lack standing, as opposed to simply having failed to prove an element of their claim.” Ms. *11 (some internal quotation marks omitted).

However, the Court issues the writ because the two trials resulting from the bifurcation involve overlapping issues and evidence. The Court concludes, “[b]ased on the literal meaning of the language used in the trial court’s order, the first trial necessarily must involve the issue of special damage proximately caused by the defendants’ conduct,” Ms. *15, and holds “conducting a trial on the issue of the defendants’ “liability” for a public nuisance and a second trial on ‘special damage’ neither avoids prejudice nor furthers convenience, expedition, or economy. See Rule 42(b) [Ala. R. Civ. P.]. We can only conclude that the trial court exceeded its discretion.” Ms. **17-18.

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