Key Takeaways
The Supreme Court of Appeals of West Virginia declined to decide whether West Virginia allows for public nuisance claims against distributors of prescription opioids. This leaves the issue for the Fourth Circuit, which will likely weigh recent authority as it considers the district court's defense verdict disposing of nuisance claims against opioid distributors.
Last year, we covered the Fourth Circuit's sua sponte certification to West Virginia's highest court the question of whether "conditions caused by the distribution of a controlled substance [can] constitute a public nuisance" under West Virginia law in the context of ongoing opioid litigation by cities and counties against pharmaceutical distributors. City of Huntington, W. Va. v. AmerisourceBergen Drug Corp., 96 F.4th 642, 644 (4th Cir. 2024). On May 12, 2025, a three-judge majority of the Supreme Court of Appeals of West Virginia declined to answer that question due to "disputed factual findings, and related legal conclusions" on appeal before the Fourth Circuit after the district court's 2022 verdict for defendants. City of Huntington v. AmerisourceBergen Drug Corp., No. 24-166, 2025 WL 1367333, at *6 (W. Va. May 12, 2025).
The Supreme Court of Appeals turned down what it characterized as a request to "ignore the district court's factual findings and legal conclusions—particularly those findings relating to reasonableness, causation, and whether defendants violated their statutory duties—and instead, answer the certified question in a vacuum." Id. at *9. The court reasoned that "any answer" to the certified question "would be advisory, even given a reformulation." Id.
The Fourth Circuit is now expected to decide the municipalities' appeal. In an order, the court invited the parties to file letter briefs "addressing any new, relevant cases" in West Virginia or other jurisdictions. Court Order, City of Huntington, W. Va. v. AmerisourceBergen Drug Corp., No. 22-1819, ECF 139 (4th Cir. May 15, 2025). Defendants highlighted a number of recent decisions, including opinions by Ohio and Maine's highest courts declining to permit public nuisance claims involving prescription opioids. Supplemental Authorities at 5–7, AmerisourceBergen Drug Corp., No. 22-1819 (4th Cir. May 30, 2025), ECF 141.
The Fourth Circuit could follow this trend and make an "Erie guess" that West Virginia law likewise does not extend public nuisance to claims against opioid distributors. However, as the distributors highlight in their submission, the court need not reach that question and could instead affirm the verdict on one or more of the grounds on which the district court, assuming public nuisance law applied, found the municipalities failed to prove the claim at trial. See id. at 1; City of Huntington v. AmerisourceBergen Drug Corp., 609 F. Supp. 3d 408 (S.D.W. Va. 2022).
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