The West Virginia Supreme Court has refused to help a federal appeals panel resolve a case that seeks to make three of the nation’s largest drug distributors pay to abate the state’s opioids overdose crisis.
To reach its ruling, a 3-2 majority of justices voted to set a new, tighter standard that they would not answer these kinds of legal questions unless the issues involved “substantially control the case.”
In the case, Cabell County and the city of Huntington sued drug distributors AmeriSource Bergen Drug Corp., Cardinal Health, Inc. and McKesson Corp. over the flood of painkillers that fueled West Virginia’s overdose epidemic.
“The tragic effects of the opioid epidemic in Huntington and Cabell County are well-known and accepted by the parties,” Justice Haley Bunn wrote for the majority. “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.”
In a dissenting opinion, Chief Justice William R. Wooten wrote that the court “could be viewed” as having “ducked an issue” in a case “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 4th Circuit Court of Appeals had asked the state court to answer this question: 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?
Wooten noted that, contrary to the majority opinion, the Legislature has said in state code that the court may answer questions like this one if doing so “may be determinative of an issue in a pending case,” and not only if the issue controls the ultimate outcome of the matter.
The ruling sends the case, filed in 2017, back to the 4th Circuit in Richmond, Virginia. More than a year ago, in March 2024, a three-judge 4th Circuit panel asked the state Supreme Court to weigh in on the case.
Lawyers for Huntington and Cabell County are appealing a ruling against them by U.S. District Judge David Faber in their lawsuit against drug distributors AmeriSource Bergen Drug Corp., Cardinal Health, Inc. and McKesson Corp.
After a 10-month trial in 2021, Faber ruled that West Virginia’s nuisance law — a central part of the Huntington-Cabell lawsuit — could not be applied to the case.
Justice Beth Walker, who is retiring next month, issued a separate opinion concurring with Bunn. Circuit Judges Tera Salango and Andrew Dimlich heard the case on temporary assignment after two justices Tim Armstead and Charles Trump disqualified themselves. Dimlich joined with the majority, while Salango joined in Wooten’s dissent.