The case of City of Huntington, et al. v. AmerisourceBergen Drug Corporation, et al., W. Va. S. Ct. Case No. 24-166 (2025) arose from the opioid epidemic in Huntington, West Virginia. The plaintiffs, the City of Huntington and the Cabell County Commission, alleged that the defendant drug distributors contributed to the opioid crisis by distributing excessive quantities of opioids, which plaintiffs claim constituted a public nuisance under West Virginia common law.
In 2017, suit was filed against AmerisourceBergen Drug Corp., Cardinal Health, Inc., and McKesson Corp., accusing them of exacerbating the opioid epidemic by distributing opioids in quantities that exceeded legitimate medical needs. The claims against these drug manufacturers were consolidated and designated as bellwether cases in multidistrict litigation (MDL) by the United States Judicial Panel on Multidistrict Litigation.
After a ten-week trial, the United States District Court for the Southern District of West Virginia ruled in favor of the defendants. The plaintiffs appealed the decision to the Fourth Circuit, and the Fourth Circuit Court responded by certifying a question to the Supreme Court of Appeals of West Virginia, asking whether the distribution of a controlled substance can constitute a public nuisance under West Virginia common law and, if so, what the elements of such a claim are.
The Supreme Court of Appeals of West Virginia declined to answer the certified question due to the presence of disputed factual findings and related legal conclusions that are currently on appeal. The court emphasized that it can only answer questions of law based on an undisputed factual record. The court noted that the existence of a public nuisance is a factual issue and that the factual findings made by the district court are essential to addressing the certified question. In other words, the West Virginia Supreme Court declined to answer the certified question from the Fourth Circuit.
The explanation for why the Supreme Court could not answer the certified question stemmed from the fact that the district court concluded that the defendants substantially complied with their duties under the Controlled Substances Act (CSA) and that the plaintiffs failed to prove that the defendants' conduct was unreasonable or that it proximately caused the opioid epidemic. Plaintiffs contested these findings on appeal, arguing that the district court misinterpreted the CSA and erred in its assessment of the defendants' conduct and causation.
Given the disputed facts and the intertwined legal conclusions, the Supreme Court of Appeals of West Virginia determined that it could not provide an answer to the certified question without issuing an advisory opinion, which it is not permitted to do.
The decision to decline answering the certified question highlights the complexity of this particular issue. Similar questions of whether products that are connected to widespread societal ills can constitute an actionable public nuisance have been addressed in other jurisdictions. These cases have involved products like firearms and cars, among other types of products. Due to the West Virginia Supreme Court declining to answer the Fourth Circuit’s question, we now must wait for the Fourth Circuit Court of Appeals to decide how the West Virginia Supreme Court of Appeals would have ruled, if it had been procedurally permitted to do so. This upcoming decision from the Fourth Circuit could have far reaching implications for product manufacturers and retailers who may be sued for contributing to a public nuisance if their products are frequently used, or misused, in a way that is deemed problematic.
Should you have any questions regarding this decision, please feel free to contact our West Virginia licensed lawyers.
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