CHARLESTON – The West Virginia Supreme Court decided not to answer a certified question from the Fourth Circuit Court of Appeals about whether the opioid epidemic was a public nuisance.
In January, the Fourth Circuit filed its question with the state Supreme Court related to lawsuits filed by the City of Huntington and the Cabell County Commission against drug distributors AmerisourceBergen, Cardinal Health and McKesson. After a 10-week bench trial in 2021, U.S. District Judge David Faber ruled in 2022 for the drug companies after he said the plaintiffs failed to prove the opioids was a public nuisance. The city and county appealed that ruling.
“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?” the Fourth Circuit asked.
Bunn
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Justice Haley Bunn wrote the majority opinion for the state Supreme Court.
“The tragic effects of the opioid epidemic in Huntington and Cabell County are well-known and accepted by the parties,” she wrote. “Yet, we resolve that we cannot, at this juncture, answer the question certified to this court from the Fourth Circuit due to the disputed factual findings, and related legal conclusions resting on those factual findings, on appeal from the federal district court in this case.”
Bunn wrote that “many of the factual findings made by the district court are disputed by the parties and are currently on appeal to the Fourth Circuit.”
“Because those disputed findings underlie our consideration of the certified question and are essential to addressing the issue before us, we respectfully decline to answer the certified question,” she wrote. “In their appeal to the Fourth Circuit, and in their briefing before this court, the plaintiffs contest the district court’s factual findings favorable to the defendants and the related legal conclusions dependent upon those factual findings.”
Bunn says any attempt to reformulate or narrow the certified question would depend on these factual findings and related legal conclusions disputed by the parties and on appeal.
“We would have to assume that some or all of the district court’s disputed findings of fact and related legal conclusions were incorrect to answer any kind of question regarding public nuisance, because if the district court’s challenged findings and related conclusions are correct, this court need not reach the legal question of whether a public nuisance cause of action exists in these circumstances,” she wrote.
“We respectfully decline to answer the Fourth Circuit’s certified question. Still, our declination does not preclude future consideration of this question, and does not affect whether we accept or decline answering future questions certified by a federal court related to the issues raised here, yet under conditions where we may more properly consider the question.”
Justice Beth Walker filed a concurring opinion saying the decision to decline answering the question was not done lightly and that the court’s power has limits. She said it was “necessary to exercise restraint.”
“In short, we do not have the integral facts before us to guide a reasoned analysis, placing us in the precarious position of venturing a guess as to what the facts might ultimately be to then reach a conclusion that, as a matter of law, public nuisance does or does not extend to them,” Walker wrote. “I not only concur in the majority’s declination to answer the certified question but also see no other option at this stage of the proceeding.”
Chief Justice Bill Wooton filed a dissenting opinion joined by Kanawha Circuit Judge Tera Salango, who sat in on the case.
“I believe this court has the duty and responsibility to answer the certified question posed to us by the Fourth Circuit,” Wooton wrote. “In that regard, I would answer the first part of the question in the affirmative and provide guidance as to the elements of a public nuisance cause of action as set forth herein.”
He adds that under longstanding West Virginia common law, a “public nuisance is an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons.”
Wooton says the majority relies upon a 1994 case in which this court declined to answer a certified question on the ground that a certified question should not be considered by this court “unless the disposition of the case depends wholly or principally upon the construction of law determined by the answer, regardless of whether the answer is in the negative or affirmative.”
“I find the majority’s reasoning to be wholly unpersuasive,” Wooton wrote. “The West Virginia Legislature wisely gave this court a flexible tool for resolving issues such as the one presented in this case.
“In declining to utilize this tool in order to answer the certified question, this court could well be viewed as having once again ducked an issue which it has ducked on three previous occasions.
“We may never have a better opportunity than the one we are squandering today. The certified question in this case is one of great importance to our state, which has been ravaged by a flood of epic proportions: a flood of opioids which has, over the course of decades, overtaken the capacity of state, county and municipal institutions and programs to remediate the damage caused in its wake. The petitioners in this case, whose coffers are inadequate to fully effect such remediation, deserve an answer to their overarching question: is there a light at the end of this tunnel?”
Wooton says the city and county are entitled to an answer to the Fourth Circuit’s question.
“Unfortunately, the majority has come to the rescue by making the argument the respondents could have made, but did not,” he wrote. “I respectfully dissent to the court’s decision to postpone, for the fourth time, a decision on this issue of critical importance.”
On social media, Huntington Mayor Patrick Farrell said the city and county will continue the fight.
“The WV Supreme Court declined to answer the federal court’s question on public nuisance law, but two justices clearly backed our position,” Farrell wrote. “Huntington and Cabell County have spent years trying to hold opioid distributors accountable. Now it’s back to the Federal Fourth Circuit as we continue the fight for justice.”
In December, the Ohio Supreme Court rejected the central premise of lawsuits that have produced some $80 billion in settlements – and billions of dollars in fees for private attorneys – ruling the state’s product-liability law bars allegations that legal products created a public nuisance.
West Virginia Supreme Court of Appeals case number 24-166