In In re Express Scripts, Inc., No. 25-2281 (4th Cir. May 15, 2026), the Fourth Circuit grants mandamus to direct that defendant Express Scripts get a jury trial in a public nuisance lawsuit, because at least one remedy sought—an abatement fund for drug rehabilitation—is a classically legal remedy, covered by the Seventh Amendment.
“In this case, 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.” The legal theory, under West Virginia law, is that “an unreasonable interference with a right common to the general public resulting from the distribution of opioids may qualify as a public nuisance when the evidence establishes that distribution of this product unreasonably ‘operates to hurt or inconvenience an indefinite number of persons.’”
One remedy sought by the plaintiffs is “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, arguing that the proposed abatement fund was legal relief. The district court denied the demand. Instead, the judge set a two-phase bench trial to determine (1) “whether Express Scripts caused the alleged oversupply and diversion of opioids” and thereby created a public nuisance, and (2) the “causation of opioid epidemic harms in Plaintiffs’ communities that relate to the equitable remedy of abatement.”
The Fourth Circuit grants the petition and orders a jury trial. (The court notes that “In this circuit, a petition for a writ of mandamus is the proper way to challenge the denial of a jury trial.”) The panel considers how common-law and equity courts handled nuisance claims in 1791.
“Founding-era practice demonstrates that equity courts did one thing—and only one thing—with public nuisances: They stopped them. Equitable abatement aimed solely at eliminating the nuisance itself, not at providing compensation to victims for losses suffered on account of the nuisance.”
“Equity’s inability to award compensation did not leave specially injured victims without a remedy for a public nuisance’s downstream harms. Law courts did have jurisdiction to provide precisely that remedy: damages for the harmful after-effects of a public nuisance, available to any plaintiff who could demonstrate particular harm or loss beyond that suffered by the public at large.”
Thus, while an “abatement fund” may “include money to provide treatment and rehabilitation for opioid addicts . . . . at the Founding, that sort of relief would have been quintessentially legal . . . . The fund would target not merely the oversupply of opioids (the alleged public nuisance) but the treatment of people who have suffered on account of that oversupply. Such treatment would constitute compensation for the downstream harm that the nuisance caused—textbook legal damages. Indeed, under Plaintiffs’ theory of the public-nuisance claim, opioid addicts—the beneficiaries of the sought-after treatment programs—may well fit into the ‘specially injured’ camp.”
Plaintiffs argued that the proposed fund was equitable because it was “forward-looking.” Yet the panel holds that “a remedy looks forward does not necessarily make it equitable. Compensatory damages routinely include prospective components. A plaintiff who breaks a leg in a car crash recovers not only for past medical expenses but also for the future cost of occupational therapy needed to regain the ability to walk—relief that is prospective but undeniably legal.”
“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.”
“The Seventh Amendment’s guarantee turns on a historical inquiry into whether the relief sought would have been awarded by courts of equity in 1791. Founding-era Chancery cases confirm that equitable abatement of a public nuisance was limited to eliminating the nuisance-constituting condition itself and did not extend to compensating for its downstream consequences. Compensation for such consequences was the exclusive province of the law courts . . . . The remedy is therefore legal, and the Seventh Amendment guarantees a jury trial.”
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