CHARLESTON – The state Supreme Court heard arguments about a certified question regarding the public nuisance aspect of Huntington and Cabell County’s opioid litigation.
The city and county appealed a July 2022 federal court ruling in favor of drugmakers AmerisourceBergen, Cardinal Health and McKesson to the U.S. Fourth Circuit Court of Appeals. U.S. District Judge David Faber had ruled the state’s common law of public nuisance did not cover the sale, distribution and manufacture of opioids.
Last year, that court sent a certified question to the state Supreme Court asking: “Under West Virginia’s common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance, and, if so, what are the elements of such a public nuisance claim?”
Farrell
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On January 28, the state Supreme Court heard those oral arguments.
Huntington and Cabell County want the court to answer the certified question in the affirmative.
“The West Virginia Mass Litigation Panel has repeatedly affirmed the position taken by the petitioners,” Paul Farrell Jr., lead attorney for the city and county, said during Tuesday’s arguments. “We ask you affirm those opinions we cite in our brief and answer the certified question in the affirmative.
Farrell also said the three drugmakers allowed the dispersal of 81 million opioid pills into the community to fuel the opioid epidemic. He said “the primary effect of creating a black market for dope and it increased illegal demand and consumption.”
Co-counsel David Frederick continued the arguments for the city and county.
“Public nuisance is a flexible doctrine,” he told the justices. “That means public health is a primary concern. The case here, as it comes to you, concerns not just the sale of a product, but the manner of distribution of a highly addictive drug.
“The community got flooded with so many opioids, it was the equivalent to 40 units per person. That unreasonable amount meets the idea of public nuisance.”
Steve Ruby, who argued on behalf of the three drug companies, said Huntington and Cabell County seem to want the justices to hear the entire case again instead of just answering the Fourth Circuit’s certified question.
“They failed to prove the respondents caused the opioid epidemic,” Ruby said. “They failed to prove the respondents violated their duties under the Controlled Substances Act and that the respondents were not responsible for controlling the volume of prescription opioids that reached the petitioner’s jurisdiction.”
He also told the court it should answer the question in the negative and side with the drug companies.
“It would be a radical expansion of public nuisance,” Ruby said.
If the state Supreme Court answers affirmatively, the case will back to the Fourth Circuit in Richmond, Virginia. If it rules in the negative, the case is done.
Justice Beth Walker even questioned the manner in which the Fourth Circuit asked the question.
“It could be a viewed as an effort to have a sort of side appeal,” she said during oral arguments. “I realize neither party it seems asked for the certified question, but what are we to do with that? And does that fit into our standards of a certified question?”
The state Supreme Court decision could potentially be worth more than a billion dollars.
If the state Supreme Court answers no to the question, the case is over. If the court answers yes, the Fourth Circuit then would remand the case back to U.S. District Judge David Faber to decide what it would cost to abate the issue.
Faber ruled in favor of the defendant companies on July 4, 2022, saying Cabell and Huntington hadn’t proved the companies were at fault for creating a public nuisance, had faulty controls against diversion of opioids and had faulty systems to detect suspiciously large orders.
Attorneys for Cabell County and Huntington filed the notice of appeal August 2, 2022, just a day after the companies signed a $400 million settlement with more than 100 other West Virginia cities and counties.
The state Mass Litigation Panel case for the other cities and counties was scheduled to begin July 5, 2022, but it was continued while the sides worked on the settlement agreement that was announced August 1, 2022. Cabell County and Huntington are not part of the $400 million state settlement. Faber’s federal trial took place in the summer of 2021, but he didn’t issue his ruling until the following summer.
An expert for the defense said damages could be anywhere from $644 million to $1.7 billion, according to court documents.
Anthony Majestro, who is representing Cabell County, said the city and county “are pleased with the thoughtful opinion of the Fourth Circuit.”
“The court recognized the conflict between Judge Faber’s decision in federal court and the consistent opinions to contrary by three different state court judges,” Majestro previously told The Record. “We look forward to the opportunity to explain to the West Virginia Supreme Court why the state court judges got it right.”
Under West Virginia common law, a public nuisance is “an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons.”
“The parties dispute whether West Virginia’s common law of public nuisance covers the defendants’ distribution of opioids,” the 4th Circuit’s March 18 order states. “Initially, the plaintiffs argue that the ‘nuisance’ at issue is the ‘harm to public health and other resources’ allegedly caused by the defendants’ distribution of opioids.
“The plaintiffs contend that, like courts in many other states, West Virginia trial courts have ‘repeatedly allowed government entities to bring public nuisance claims concerning opioids.’
“Moreover, the plaintiffs assert that the Supreme Court of Appeals has applied the common law of public nuisance to ‘commodities,’ ‘the manufacture and distribution of products’ and ‘otherwise-lawful business activities … when conducted in a manner that harms the public.’”
The distributors respond that the Supreme Court has applied the common law of public nuisance only in the context of conduct that interferes with public property such as highways, public grounds, harbors and landings, or shared resources such as clean air and water.
“The distributors also reject the plaintiffs’ interpretation of Supreme Court of Appeals precedent, contending that the cases relied on by the plaintiffs did not involve the distribution of products but, rather, involved the use of property to pollute public resources with hazardous waste or the use of property in a way that created a ‘constant danger’ to the public,” the 4th Circuit order states. “The defendants also observe that the West Virginia trial court decisions permitting public nuisance claims to proceed beyond the motion to dismiss stage are not precedential authority affecting the present case …
“Moreover, the defendants contest the plaintiffs’ characterization of the alleged injury, arguing that harm to an individual results in ‘at most, a violation of the private right not to be personally injured.’ Application of the common law of public nuisance to harms caused by the distribution of opioids, they contend, would ‘mean that every seller of a product that arguably affects public health . . . could be liable for public nuisance.’”
Because the state Supreme Court has not determined whether the common law of public nuisance may apply to conditions caused by distribution of a potentially dangerous product, the 4th Circuit is asking the state Supreme Court to make that determination.
“Indeed, public nuisance cases in West Virginia traditionally have addressed hazards or inconveniences affecting property or resources,” the 4th Circuit order states. “Nonetheless, we do not view as dispositive the fact that the Supreme Court of Appeals has not yet applied principles of public nuisance to the distribution of a product. And we hesitate to infer such limits on West Virginia’s common law of public nuisance in light of the broad language used by the Supreme Court of Appeals in describing public nuisance claims … in light of decisions by West Virginia trial courts holding that common law claims of public nuisance are cognizable against distributors of opioids.”
The 4th Circuit order then cites decisions in other West Virginia cases.
In State ex rel. Morrisey v. AmerisourceBergen Drug Corp., a Boone Circuit Court judge held that West Virginia had “sufficiently assert[ed]” a claim for public nuisance by “sufficiently alleg[ing that] the safety and health and morals of the people of West Virginia ha[d] been compromised due to defendants’ alleged wrongful influx of addictive, controlled substances into West Virginia, thereby causing substantial injury to West Virginia citizens and taxpayers.”
And in Brooke County Commission v. Purdue Pharma, a circuit judge held that the common law of public nuisance is “not limited to property disputes,” and that the distributor defendants had “interfered with a public right, including the public health.”
Also, the West Virginia Mass Litigation Panel has concluded in multiple instances that the distribution of opioids can form the basis of a public nuisance claim under West Virginia common law. When considering a motion to dismiss filed by the same distributors in this case, the MLP denied the distributors’ motion and “adopt[ed] and incorporate[d] by reference” the findings of fact and conclusions of law from the Brooke County case.
The 4th Circuit order also says that the district court issued its decision in this case, the state MLP stated that the district court’s “placement of an artificial external constraint on the common law cause of action for public nuisance is inconsistent with the Supreme Court of Appeals’ longstanding recognition that a public nuisance is any act or condition that ‘operates to hurt or inconvenience an indefinite number of persons,’ and that ‘nuisance is a flexible area of the law that is adaptable to a wide variety of factual situations.’”
Huntington is being represented by Anne Kearse, Joseph Rice, Linda Singer and David Ackerman of Motley Rice. Cabell County is being represented by Paul Farrell Jr. of Farrell Law, Majestro of Powell & Majestro and Michael Woelfel of Woelfel & Woelfel.
AmerisourceBergen is being represented by Gretchen Callas of Jackson Kelly and Robert Nicholas and Shannon McClure of Reed Smith. Cardinal Health is being represented by Enu Mainigi, F. Lane Heard III and Ashley Hardin of Williams & Connolly. McKesson is being represented by Mark Lynch, Christian Pistilli, Laura Wu and Megan Crowley of Covington & Burling.
At Tuesday's oral arguments, Justices Tim Armstead and Charles Trump recused themselves from the case because they both were members of the state Legislature. Sitting by temporary assignment in their places, respectively, were Raleigh Circuit Judge Andrew Dimlich and Kanawha Circuit Judge Tera Salango.
Fourth Circuit Court of Appeals case number 22-1819 [U.S. District Court for the Southern District of West Virginia case numbers 3:17-cv-01362 (Huntington) and 3:17-cv-01665 (Cabell County) (Federal opioid MDL 1:17-md-02804 in the Northern District of Ohio)]