JARED EFFLER ET AL. v. PURDUE PHARMA L.P. ET AL.
No. E2018-01994-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
December 17, 2020
September 2, 2020 Session; Appeal by Permission from the Court of Appeals; Circuit Court for Campbell County; No. 16596; John D. McAfee, Judge
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in Part, Reversed in Part; Judgment of the Trial Court Reversed; Remanded to the Trial Court
SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J., and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
Ronald S. Range, Jr. and Chad E. Wallace, Johnson City, Tennessee; Ingo W. Sprie, Jr., New York, New York; R. Stanton Jones, Washington, D.C.; Anthony J. Franze, Washington, D.C.; Tim Warnock and Stuart Burkhalter, Nashville, Tennessee; Megan R. Braden, Chicago, Illinois (on application for permission to appeal); Steven A. Reed, Philadelphia, Pennsylvania (on application for permission to appeal); Wendy West Feinstein, Pittsburgh, Pennsylvania; and Brian M. Ercole, Miami, Florida, for the appellants, Endo Health Solutions Inc., Endo Pharmaceuticals Inc., and Teva Pharmaceuticals USA, Inc.
Michael J. Wall, James G. Stranch, III, J. Gerard Stranch, IV, Tricia Herzfeld, Benjamin A. Gastel, and Anthony Orlandi, Nashville, Tennessee; William C. Killian, Chattanooga, Tennessee; and L. Jeffrey Hagood, Bradley H. Hodge, and Timothy A. Householder, Knoxville, Tennessee, for the appellees, Jared Effler, District Attorney General—Eighth Judicial District; Charme Allen, District Attorney General—Sixth Judicial District; Dave Clark, District Attorney General—Seventh Judicial District; Russell Johnson, District Attorney General—Ninth Judicial District; Stephen Crump, District Attorney General—Tenth Judicial District; Jimmy Dunn, District Attorney General—Fourth Judicial District; Mike Taylor, District Attorney General—Twelfth Judicial District; Baby Doe #1; and Baby Doe #2.
Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Brant Harrell, Senior Assistant Attorney General; Laura Kidwell, Assistant Solicitor General; and Miranda Jones, Assistant Attorney General, for the amicus curiae, State of Tennessee.
Jerry Estes, Nashville, Tennessee, for the amicus curiae, Tennessee District Attorneys General Conference.
Philip S. Goldberg, Washington, D.C., and Tara L. Swafford and Elizabeth G. Hart, Franklin, Tennessee, for the amici
Richard L. Neumeier, Boston, Massachusetts, and Charles Michels, Nashville, Tennessee, for the amicus curiae, International Association of Defense Counsel.
OPINION
I.
The Drug Dealer Liability Act2 provides a civil remedy for damages to persons and entities injured by illegal drug use. The United States Virgin Islands and at least eighteen states, including Tennessee, have adopted a form of the Model Drug Dealer Liability Act.3 The Model Act has been described as “essentially a products liability act for illegal drugs.” Overview, Model Drug Dealer Liability Act, www.modelddla.com/Overview_of_the_Model_Drug-Dealer_Liability_Act.htm (last visited
Tennessee‘s Act expressly creates market liability “for those who intentionally join the illegal drug market.”
Thus, the Legislature created a statutory cause of action for family members of drug users, including babies exposed to illegal drugs in utero; employers, insurers, medical facilities, governmental entities, and others that have expended resources on behalf of an illegal drug user; and anyone injured by the actions of an illegal drug user against those “who knowingly participate in the illegal drug market in Tennessee.”
Circuit Court for Campbell
The Drug Companies moved to dismiss under Tennessee Rule of Civil Procedure 12.02(6), contending that under the Act, the District Attorneys lacked standing to sue and that the complaint failed to state a statutory claim for relief. The trial court granted the motion to dismiss, finding that the Act did not apply to the Drug Companies because they were legally producing and distributing opioid medications.
The Court of Appeals reversed, holding that the District Attorneys and the Baby Doe plaintiffs had stated a claim under the Act, taking as true the detailed allegations in the complaint about the Drug Companies’ knowing participation in the diversion of opioid medications for illegal use. Effler v. Purdue Pharma L.P., No. E2018-01994-COA-R3-CV, 2019 WL 4303050, at *1 (Tenn. Ct. App. Sept. 11, 2019). The Court of Appeals also held that the District Attorneys had standing to sue under the Act. Id.
This Court granted the Drug Companies’ application for permission to appeal to determine whether under the Act the District Attorneys have standing to sue and whether the complaint states a claim against the Drug Companies on which relief can be granted.
We review the lower court‘s decision on the Drug Companies’ Rule 12.02(6) motion to dismiss on the issues of standing and applicability of the Act de novo with no presumption of correctness. Nelson v. Myres, 545 S.W.3d 428, 431 (Tenn. 2018) (quoting Metro. Gov‘t of Nashville v. Bd. of Zoning Appeals of Nashville, 477 S.W.3d 750, 754 (Tenn. 2015)). A motion to dismiss challenges the legal sufficiency of a claim and accepts as true all the complaint‘s factual allegations. Id. at 430. We are required to take the allegations in the complaint as true and give “the plaintiff the benefit of all reasonable inferences.” Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31–32 (Tenn. 2007)). When
defendants move to dismiss under Rule 12.02(6), in effect they are admitting the truth of the allegations in the complaint but contending that those allegations do not state a cause of action. Nelson, 545 S.W.3d at 430–31 (quoting Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005)). “A trial court should grant a motion to dismiss ‘only when it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.‘” Webb, 346 S.W.3d at 426 (quoting Crews v. Buckman Lab‘ys Int‘l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)).
II.
Standing of the District Attorneys
The doctrine of standing ensures that courts hear only those cases that they should—and that only the proper parties bring those claims. When considering the threshold question of standing, we determine “whether a party has a sufficiently personal stake in a matter at issue to warrant a judicial resolution of the dispute.” Metro. Gov‘t of Nashville, 477 S.W.3d at 755 (quoting State v. Harrison, 270 S.W.3d 21, 28 (Tenn. 2008)). Only a “distinct and palpable injury . . . to a recognized legal right or interest” can support a plaintiff‘s standing to sue. Id. And, crucially, courts must “ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Id. (quoting Wood v. Metro. Nashville & Davidson Cnty. Gov‘t, 196 S.W.3d 152, 158 (Tenn. Ct. App. 2005)) (emphasis added).
The Drug Companies contend that the Act does not name the District Attorneys as parties who can file suit under the Act, and without statutory authorization, the District Attorneys lack standing. The District Attorneys argue that the Act grants them standing under section 106(a) as governmental entities or under section 116(a) as parties with a close alignment of interests with the governmental entities for whom they filed suit.
We begin with the language of the Act which lists the parties who may file suit:
- A parent, legal guardian, child, spouse, or sibling of the individual drug user;
- An individual who was exposed to an illegal drug in utero;
- An employer of the individual drug user;
- A medical facility, insurer, governmental entity, employer, or other entity that funds a drug treatment program or employee assistance program for the individual drug user, or that otherwise expended money on behalf of the individual drug user; or
- A person injured as a result of the willful, reckless, or negligent actions of an individual drug user.
Section 106(a) lists governmental entities, but not District Attorneys, as parties with standing to sue. Presuming that the Legislature means what it says—and does not mean what it does not say—we follow the principle of expressio unius est exclusio alterius. This canon of statutory interpretation means that “the expression
Under this principle, a statute describing the category of parties who can bring a claim under its provisions exhausts that category. This was the basis for the court‘s ruling in Tucker v. Dabbs, 59 Tenn. (12 Heisk.) 18 (1873), where the next friend of a minor tried to submit the minor‘s claim to arbitration. The Tucker court held that the arbitration statute only gave that power to a “party in interest, or . . . an executor, administrator, guardian, trustee, or assignee for creditors.” Id. at 21 (citing 1858 Code §§ 3432–33 (current version at
The District Attorneys claim to “stand in the shoes” of the political subdivisions in their districts and act as “governmental entities” under the Act. The District Attorneys argue that they wield considerable independence and power as constitutional officers. Elected by the voters within their districts, District Attorneys have the duty to “attend and prosecute according to the law” those cases falling within a judicial district‘s criminal jurisdiction.
The Legislature knows how to specifically empower District Attorneys to institute a civil action, and it has done so, repeatedly, through express language. The Legislature did not do so here. Legislative authorization may take the form of a freestanding duty, as with the forfeiture of property used to commit a crime. See
The District Attorneys hang their hat on section 116(a) which allows a prosecuting attorney to ”represent the state or a political subdivision of the state” in a suit under the Act.
names or represent a class of plaintiffs, the Legislature could have expressly done so. We see no reason to depart from the tenets of statutory interpretation when a more plausible interpretation is readily available: that section 116(a) permits a governmental entity to authorize its District Attorney to serve as its counsel under the Act. And here the District Attorneys are not serving as counsel for any governmental entities, but as plaintiffs with retained counsel. There is no allegation that the District Attorneys provided notice to the governmental entities about this action or gained authorization to sue on their behalf. The District Attorneys’ other analogies—to a “candidate‘s representative” suing over a defective ballot, representation of minors and others who lack the legal capacity to sue, and representation by fiduciaries or agents subject to a principal‘s direction and control—do not apply here.
The flaw in the District Attorneys’ position is apparent in a direct application of their theory to the text of the statute. The idea that any one of Tennessee‘s thirty-one locally elected District Attorneys General could litigate and bind the entire state to that judgment under the Act buckles under its own contradictions.9 The only viable reading of section 116 requires the relevant government entity to authorize representation by a local District Attorney.
The District Attorneys also argue that we must give effect to the remedial purposes of the Act. But where the plain text of a statute is clear, we need look no further. State v. Gibson, 506 S.W.3d 450, 455–56 (Tenn. 2016). And the District Attorneys’ theories will not conjure up ambiguity where there is none to be found. The Act, unmistakably, does not create a cause of action for local prosecutors to sue in their own names. And even if we were to look to the Act‘s remedial purposes, that consideration is not enough for us to read a cause of action into the statute contrary to established principles of interpretation.
We consider statutory language ambiguous when it can be interpreted in different ways that produce contrary results. Wallace v. Metro. Gov‘t of Nashville & Davidson Cnty., 546 S.W.3d 47, 53 (Tenn. 2018) (citing In re Hogue, 286 S.W.3d 890, 894 (Tenn. 2009)). But “[t]his proposition does not mean that an ambiguity exists merely because the parties proffer different interpretations of the statute,” especially if one of those interpretations is “nonsensical or clearly erroneous.” Id. (quoting Powers v. State, 343 S.W.3d 36, 50 n.20 (Tenn. 2011)). We find that the District Attorneys’ interpretation of the Act is clearly erroneous and thus does not create an ambiguity. We need to go no further than the plain language of the Act to conclude that the District Attorneys lack standing to bring this claim.
The Act‘s Application to the Drug Companies
Next, we turn to the Baby Doe plaintiffs’ claims against the Drug Companies. The Baby Doe plaintiffs argue that the Act applies to the Drug Companies because they intentionally participated in the illegal drug market. The Act provides that “a person who knowingly participates
To establish a defendant‘s involvement, a plaintiff may rely on a “market liability” theory by establishing that:
(A) The place of illegal drug activity by the individual drug user is within the illegal drug market target community11 of the defendant;
(B) The defendant‘s participation in the illegal drug market was connected with the same type of illegal drug used by the individual drug user; and
(C) The defendant participated in the illegal drug market at any time during the individual drug user‘s period of illegal drug use.
The Drug Companies allegedly manufactured and distributed highly addictive opioids in quantities too large to be medically justified. For example, the Baby Doe plaintiffs allege that in 2016 there were 1.148 opioid prescriptions per person in Tennessee. In 2015, Tennessee had the second highest number of filled opioid prescriptions in the nation, with 1.18 prescriptions—fifty-one hydrocodone pills and twenty-one oxycodone pills—for every
The Baby Doe plaintiffs’ 146-page complaint states many specific and detailed allegations of intentional conduct by the Drug Companies to fuel the demand in the illegal market for their opioid medications and to flood the market with an over-supply of opioids to meet that demand. The complaint alleges that the Drug Companies observed signs of illegal diversion, and they knew that some of the opioids were being distributed without a prescription and thus were illegal drugs. The Baby Doe plaintiffs assert that the Drug Companies knew and intended that unscrupulous doctors, “pill mills,” or others on the street would distribute the drugs to persons not registered to receive them.12 This conduct would occur during and as part of the diversion of the drugs to the illegal market. Some of the Baby Doe plaintiffs’ allegations state:
- The Drug Companies “spent years pushing their wares into a market of unsuspecting doctors and patients, and they continue to knowingly participate in and profit from the illegal opioid market that they helped create.”
- The Drug Companies know opioids are “over-prescribed in Tennessee . . . at levels far beyond what could be medically justified; that a legion of addicts are obtaining pills on the black market or through ‘pill mills’ [;] . . . that a significant share of the opioids market in Tennessee and East Tennessee consists of illegal drug transactions; and that they are reaping profits from drug sales destined for this illegal drug market.”
- Even though they knew of the “substantial risks of addiction, abuse, and illegal diversion associated with prescribing opioids for chronic pain,” the Drug Companies “each played a key role in creating, perpetuating, and/or expanding the opioid crisis, including the creation of a legion of addicts who would seek pills on the black market or through ‘pill mills.‘”
- The Drug Companies knew that “an expanding opioids market would (a) create a legion of addicts dependent on opioids; (b) encourage the medically unnecessary prescription of opioids and the abuse of opioids; and (c) foster a secondary illegal drug market premised on the illegal diversion of opioids. Nevertheless, they made every effort to expand that market, to keep the flow of opioids streaming into communities at levels that were not medically justifiable and enjoy profits derived from the illegal distribution of opioids.”
- The Drug Companies’ “promotion of opioids gave rise to and fueled the illegal drug market that existed in the Opioid Epidemic Affected Counties13
during all periods relevant to this suit. Each company‘s representations regarding the risks of opioids and actions taken to push opioids through aggressive marketing of their collective message contributed to the market for both illegally prescribed opioids and for diverted opioids (and heroin for those addicts who could no longer obtain or afford prescription opioids).” - “The dramatic rise in opioid prescriptions, and associated overdoses, other related health problems, and [neonatal abstinence syndrome] births . . . since the commencement of [the Drug Companies‘] campaign in the mid-1990‘s shows
- the scope of the illegal drug market knowingly created by [the Drug Companies].”
- “[The Drug Companies] have knowingly continued to distribute opioids in amounts that they know are not medically justified, that they know are continuing to create opioid addicts, that they know are being illegally prescribed and/or illegally diverted, and . . . they know they are profiting from . . .”
- The high “rates of [neonatal abstinence syndrome] in East Tennessee are a natural consequence of, and are proximately caused by, the illegal drug market in which [the Drug Companies] participate. [The Drug Companies] knew that their acts and omissions with regard[] to the marketing and distribution of opioids would result in a community of addicts, that those addicts would likely seek opioids through illegal distribution channels, and that many of those addicts would give (and have given) birth to babies dependent upon opioids with alarming frequency in East Tennessee and elsewhere as a result of those addicted mothers’ ingestion of opioids during pregnancy.”
- “Endo also continues to participate in an illegal drug market that it helped create.”
- “Despite evidence of widespread abuse, Endo continued to push its drug into the addiction pipeline in Tennessee, including the Opioid Epidemic Affected Counties, with its highly addictive, and deadly, prescription opioid, all the while knowing that it was being diverted into the illicit market.”
- Endo was aware of the excessive volume of opioid prescriptions in Tennessee and “knew that such inflated prescribing necessarily reflects improper prescribing and diversion of opioids, including Endo‘s products. On information and belief, Endo also knowingly participated in the illegal drug market in the Opioid Epidemic Affected Counties by supplying quantities of its products to physicians and pharmacies whose prescribing habits necessarily or likely reflected unlawful diversion.”
- “Teva continues to flood East Tennessee with opioids in an amount that clearly contributes to the illegal opioid drug market,” having the largest market share of generic oxycodone and hydrocodone throughout Tennessee, which “clearly exceed[s] the number that would be appropriate for normally prescribed therapeutic use and contribute[s] to the
illegal East Tennessee opioid market.”
- “On information and belief, Teva also knowingly participated in the illegal drug market in Tennessee by supplying suspicious quantities of its products to suspect physicians and pharmacies in Tennessee, without disclosing suspicious orders as required by applicable regulations.”
- “[U]pon information and belief, through their market research and extensive networks of sales representatives and face-to-face detailing of health care providers . . ., [the Drug Companies] could, and did, observe signs of illegal diversion.”
- “Upon information and belief, [the Drug Companies] also received information from credible sources—including, but not limited to, pharmacists and law enforcement agencies—that [a health care provider] or his or her patients were diverting prescription medication.”
- “[The Drug Companies] failed to cut off these [health care providers‘] prescription opioid supply at the pharmacy level—meaning the pharmaceutical drug producers continued to generate sales revenue from their prescriptions—and failed to report the unscrupulous providers to state medical boards and state and federal law enforcement agencies.”
- “By failing to report and/or prevent suspicious orders, [the Drug Companies] enabled the supply of prescription opioids to obviously suspicious physicians and pharmacies, enabled the illegal diversion of prescription opioids, aided criminal activity and disseminated massive quantities of prescription opioids into the black market.”
- “Under Tennessee criminal laws, . . . oxycodone, Roxicodone, OxyContin, Opana, Lortab and other opioids are illegal drugs if possessed, sold, and distributed without a valid prescription.”
- “Under clearly established Tennessee law, illegally diverted opioids are ‘illegal drugs.‘”
- The Drug Companies “knowingly failed to implement effective controls and procedures in their supply chains to guard against theft, diversion, and abuse of prescription opioids, and failed to adequately design and operate a system to detect, halt, and report suspicious orders of prescription opioids.”
- “As a result, [the Drug Companies] knowingly disseminated massive quantities of prescription opioids to suspect physicians and pharmacies and into the black market, including ‘pill mills’ . . . .”
- The Drug Companies “knowingly participated in the production and/or distribution of prescription opioids that reached [the Baby Doe plaintiffs] and the Opioid Epidemic Affected Counties during all times relevant to this complaint.”
- Baby Doe #1 was born with neonatal abstinence syndrome in Knox County. His mother was raised and began using opioids in Campbell County.
- Baby Doe #2 was born with neonatal abstinence syndrome in Campbell County. His mother used opioids purchased in Campbell County throughout her pregnancy.
- The Baby Doe Plaintiffs’ neonatal abstinence syndrome was caused by the illegal drug market in which the Drug Companies knowingly participated.
There are no reported decisions with similar allegations brought under the Model Drug Dealer Liability Act in other states. The Drug Companies cite three cases to support their position that the Act does not apply, but all are distinguishable. In Whittemore v. Owens Healthcare-Retail Pharmacy, Inc., 111 Cal. Rptr. 3d 227 (Cal. Ct. App. 2010), the issue was whether a pharmacy could be held liable under the California Drug Dealer Act,
In another case involving a pharmacy, Schafer v. Shopko Stores, Inc., 741 N.W.2d 758 (S.D. 2007), the issue was whether a pharmacy that dispensed a validly prescribed drug (morphine sulfate) to an authorized agent could be held liable under the South Dakota Drug Dealer Liability Act,
Here, unlike in Whittemore and Schafer, the Baby Doe plaintiffs have made factual allegations that the Drug Companies knowingly and purposefully participated in the illegal drug market by deceptively and aggressively marketing their opioid medications, encouraging doctors to prescribe and even over-prescribe opioids, and over-supplying opioids for distribution in East Tennessee and specifically in the counties where the Baby Doe plaintiffs were exposed to the drugs. The legal conduct of the pharmacies in Whittemore and Schafer differs from the intentional misconduct alleged against the Drug Companies here.
The Drug Companies also cite Cooper v. Purdue Frederick Co., No. 08-3757, 2008 WL 11355004 (E.D. La. Nov. 5, 2008). But this case is of no help to the Drug Companies. The plaintiffs, a husband and wife, sued three drug companies and a pharmacy under the Louisiana Drug Dealer Liability Act,
We find persuasive the rationale of the United States District Court for the Southern District of Ohio that when a community is flooded with highly-addictive drugs, a black market for those drugs will follow. In re Nat‘l Prescription Opiate Litig., No. 1:17-md-2804, 2018 WL 6628898, at *19 (S.D. Ohio Dec. 19, 2018). In refusing to dismiss negligence claims against distributors and manufacturers of opioid medications, the court said:
Here, taking Plaintiffs’ allegations as true, by failing to administer responsible distribution practices . . ., Defendants not only failed to prevent diversion, but affirmatively created an illegal, secondary opioid market. Opioids are Schedule II drugs. Despite Manufacturer Defendants’ marketing campaign to the contrary[,] it is well known that opioids are highly addictive. When there is a flood of highly addictive drugs into a community it is foreseeable—to the point of being a foregone conclusion—that there
will be a secondary, “black” market created for those drugs.
Id. Defining the intentional over-supplying of addictive medications as illegal distribution is not a new concept. The United States Supreme Court recognized over seventy-five years ago that when a drug manufacturer sold morphine sulfate to a small-town doctor “in such quantities, so frequently and over so long a period[,] it must have known he could not dispense the amounts received in lawful practice and was therefore distributing the drug illegally.” Direct Sales Co. v. United States, 319 U.S. 703, 705 (1943).
The Drug Companies argue they are not “drug dealers” as referenced in the caption and the opening section of the Act—“This chapter shall be known and may be cited as the ‘Drug Dealer Liability Act.‘”
The Drug Companies also assert that the Act‘s imposition of “market liability” on those who participate in the illegal drug market should not apply to the legal drug market for Federal Drug Administration-approved prescription medications. Yet, the Act explains that, under the market liability theory, some states have provided in case law “for civil recovery by plaintiffs who are unable to identify the particular manufacturer of the product that is claimed to have caused them harm, allowing recovery from all manufacturers of the product who participated in that particular market.”
Amici curiae in support of the Drug Companies argue that drug companies have no way to know what happens to the opioid medications when they leave the companies’ control after being sold “in a highly regulated distribution chain.” They argue that the Act only applies “to those who deal drugs during or after . . . diversion to the illegal drug market.” The International
Along these lines, the Baby Doe plaintiffs allege that the Drug Companies’ intentional conduct has fueled both opioid addiction and the illegal black market for opioid drugs; that the Drug Companies purposefully directed their conduct at the counties where the Baby Doe plaintiffs were exposed to opioids in utero; and that the Baby Doe plaintiffs suffered from neonatal abstinence syndrome because of the Drug Companies’ actions. These allegations, taken as true, amount to participation in the illegal drug market as defined by the Act.
Finally, the Drug Companies urge this Court to rule that the Act does not apply in this case in order to “avoid the serious constitutional question whether the Act‘s ‘market liability’ scheme violates due process.” The Drug Companies have not asked the Court to rule on the constitutionality of the Act, so that issue is not before us. Rather, the Drug Companies have asked the Court to determine whether section 105(a) of the Act, which provides for liability against those who knowingly participate in the illegal drug market, “encompass[es] a pharmaceutical company‘s lawful sale of prescription medications to legal, state-licensed distributors because a portion of those medications are ultimately diverted into illegal drug markets by the illegal acts of third parties.” We have done so by determining that section 105(a) encompasses the conduct of the Drug Companies as alleged in the complaint.
The Baby Doe plaintiffs have the burden of proving to a jury by clear and convincing evidence that the Drug Companies participated in the illegal drug market.
CONCLUSION
We hold that the District Attorneys lack standing to bring an action under the Act as individual plaintiffs. We also hold that the Baby Doe plaintiffs, whose standing is not in dispute, have stated a claim against the Drug Companies based on the allegations of intentional and purposeful participation in the illegal opioid market. Thus, we reverse the judgment of the Campbell County Circuit Court, reverse in part and affirm in part the judgment of the Court of Appeals, and remand to the Campbell County Circuit Court for further proceedings consistent with this opinion. The costs of this appeal are taxed one-half to Jared Effler, District Attorney General—Eighth Judicial District; Charme Allen, District Attorney General—Sixth Judicial District; Dave Clark, District Attorney General—Seventh Judicial District; Russell Johnson, District Attorney General—Ninth Judicial District; Stephen Crump, District Attorney General—Tenth Judicial District; Jimmy Dunn, District Attorney General—Fourth Judicial District; Mike Taylor, District Attorney General—Twelfth Judicial District
SHARON G. LEE, JUSTICE