A.D.A., as next friend of L.R.A., a minor child under the age of 18 v. Johnson & Johnson; A.N.C., as next friend of J.J.S., a minor child under the age of 18 v. Johnson & Johnson; Travis B., next friend and guardian of minor child Z.D.B. v. McKesson Corporation; and Trey Sparks v. Johnson & Johnson, Inc., 912 S.E.2d 37

Background

Twenty‑one consolidated West Virginia cases filed by parents/guardians (and one adult claimant) alleging neonatal abstinence syndrome (NAS) from in‑utero exposure to prescription and diverted opioids. Plaintiffs sued manufacturers, distributors, numerous pharmacies, McKinsey consulting entities, Indivior, and the West Virginia Board of Pharmacy (BOP).
Petitioners alleged public nuisance, negligence, products‑liability (design/failure to warn/strict liability), fraud/misrepresentation, civil conspiracy, claims under the MPLA against pharmacy defendants, requests for medical monitoring, and punitive damages.
The Mass Litigation Panel (MLP) granted Rule 12(b)(6) motions and dismissed all complaints with prejudice, citing: MPLA pre‑suit notice failures as to pharmacies; lack of standing for public nuisance (no "special injury"); lack of duty of care for many defendants; proximate‑cause problems (birth mothers’ ingestion deemed sole proximate cause); and public‑duty/ immunity defenses for BOP. Indivior and McKinsey were dismissed on tailored grounds.
The Intermediate Court of Appeals (ICA) reviewed de novo. It affirmed many dismissals (public nuisance, general negligence as to non‑pharmacy defendants, fraud, civil conspiracy, McKinsey, BOP, Indivior) but found several MLP errors requiring reversal/vacatur/remand.
Key ICA holdings: MPLA claims against pharmacies were properly dismissed for lack of pre‑suit notice but should have been dismissed without prejudice; products‑liability dismissals lacked meaningful analysis and were reversed; the MLP erred in finding birth mothers’ conduct the sole proximate cause in all cases; punitive‑damages and medical‑monitoring dismissals relating to revived product claims were vacated and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
MPLA pre‑suit jurisdiction for pharmacy claims	MPLA does not apply or dismissal should not be with prejudice	MPLA applies; pre‑suit notice is jurisdictional and was not given	MPLA applies; dismissal for lack of jurisdiction affirmed but must be without prejudice; remand to dismiss pharmacies without prejudice
Standing for public nuisance	Personal injury from NAS is a "special injury" allowing private suit	Public nuisance is for public officials; plaintiffs lack "special injury"	Affirmed dismissal: plaintiffs failed to plead an injury "different in degree and character" from the public; no standing for private public‑nuisance suits
Existence of a common‑law duty of care (manufacturers/distributors/consultants)	Defendants should have foreseen harms and owed a duty to infants	Duty would be too expansive; industry is heavily regulated; no duty to prevent third‑party criminal acts	Affirmed: no general duty owed by non‑pharmacy defendants (including McKinsey); policy limits and regulation weigh against imposing new duties
Products‑liability claims (design/warning/strict liability)	Manufacturers are liable for defective design/failure to warn that led to NAS	Dismissal appropriate due to proximate‑cause attenuation and other doctrines	Reversed: MLP failed to meaningfully analyze products claims; product claims may proceed on remand (no ruling on merits)
Proximate cause; whether birth mothers’ ingestion is sole proximate cause	Corporate conduct contributed and can be proximate cause despite intervening prescriptions/ingestion	Birth mothers’ decisions and physician prescriptions are intervening causes breaking causation	Vacated MLP’s blanket finding that birth mothers were sole proximate cause; proximate‑cause analysis must be revisited for claims that survive (some alleged intervening conduct may or may not break causation)
Claims vs. Board of Pharmacy (public‑duty doctrine and immunity)	BOP negligently failed to regulate/monitor controlled‑substance data	Public‑duty doctrine bars suits for failure to enforce regulatory statutes; discretionary/ policy acts immunized	Affirmed dismissal: public‑duty doctrine applies; alternatively claims barred by qualified and absolute immunity absent special‑relationship allegations
Fraud / intentional misrepresentation and civil conspiracy	Misrepresentations by defendants caused mothers to take opioids; conspiracy alleged	Plaintiffs inadequately pled reliance, particularity, and causal link; conspiracy depends on underlying tort	Affirmed dismissal: fraud claims fail for lack of particularity on reliance/damages; conspiracy fails as derivative and requires intentional‑act pleading
Punitive damages and medical monitoring (derivative remedies)	These remedies should survive even if some tort claims dismissed	They are incidental to underlying tort liability and cannot stand alone	Vacated dismissal as to those claims tied to revived product‑liability counts; remanded for further consideration

Key Cases Cited

State ex rel. McGraw v. Scott Runyan Pontiac‑Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995) (de novo review of dismissal)
State ex rel. PrimeCare Med. of W. Va. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019) (MPLA pre‑suit notice is jurisdictional)
Tanner v. Raybuck, 246 W. Va. 361, 873 S.E.2d 892 (2022) (dismissal for lack of jurisdiction is generally without prejudice)
Hinkle v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W. Va. 492, 211 S.E.2d 705 (1975) (court with no jurisdiction should only dismiss)
Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000) (duty‑of‑care is a question of law involving foreseeability and policy limits)
Hark v. Mountain Fork Lumber Co., 127 W. Va. 586, 34 S.E.2d 348 (1945) (definition and limits of public nuisance; special‑injury requirement)
Sharon Steel Corp. v. City of Fairmont, 175 W. Va. 479, 334 S.E.2d 616 (1985) (private plaintiffs ordinarily lack standing to abate public nuisance absent special injury)
Marcus v. Staubs, 230 W. Va. 127, 736 S.E.2d 360 (2012) (definition of intervening cause that may relieve tortfeasor)
Mays v. Chang, 213 W. Va. 220, 579 S.E.2d 561 (2003) (plaintiff need show defendant’s breach was a proximate cause, not the sole cause)
Spencer v. McClure, 217 W. Va. 442, 618 S.E.2d 451 (2005) (proximate cause definition for negligence)
Ilosky v. Michelin Tire Corp., 172 W. Va. 435, 307 S.E.2d 603 (1983) (product‑liability theories: strict liability, negligence, warranty)
Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 253 S.E.2d 666 (1979) (categories of product defects and warnings)
Stevens v. MTR Gaming Group, Inc., 237 W. Va. 531, 788 S.E.2d 59 (2016) (reluctance to impose duties in heavily regulated industries)
Benson v. Kutsch, 181 W. Va. 1, 380 S.E.2d 36 (1989) (public‑duty doctrine bars suits for failure to enforce regulatory statutes)
Holsten v. Massey, 200 W. Va. 775, 490 S.E.2d 864 (1997) (public‑duty doctrine is based on absence of duty)