RICHMOND, Virginia – The West Virginia Supreme Court now has a potential billion-dollar question on its hands.
On March 18, the U.S. Circuit Court of Appeals for the Fourth Circuit Court remanded the combined case of Huntington and Cabell County against opioid distributors back to the state Supreme Court to answer a certified question regarding whether the actions or omissions of the distributors constitute a nuisance under West Virginia law.
If the state Supreme Court answers no to that 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.
Williams
| File photo
“We’ve been looking forward to receiving this news,” Huntington Mayor Steve Williams said. “Hope is still alive in the hills of West Virginia.”
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 – AmerisourceBergen, Cardinal Health and McKesson – 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.
“This is extremely encouraging,” attorney Rusty Webb, who is representing Huntington, said of the 4th Circuit’s remand.
An expert for the defense said damages could be anywhere from $644 million to $1.7 billion, according to court documents.
Anthony Majestro, who represents Cabell County, said the sides will prepared briefs and argue the issue before the state Supreme Court. No timeline has been set.
“We are pleased with the thoughtful opinion of the Fourth Circuit,” Majestro said. “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.
“We look forward to the opportunity to explain to the West Virginia Supreme Court why the state court judges got it right.”
Williams said he is optimistic about Monday's news.
"As reflected in the order, the (4th Circuit) took note of our arguments that, as in many other states, West Virginia trial courts have repeatedly allowed government entities to bring public nuisance claims concerning opioids and, if proven, can be recognizable claims against distributors of opioids," he said. "We remain hopeful that the (state Supreme) Court will find under West Virginia law, the City of Huntington and Cabell County had the right to file its claim that distributors of opioids can be held accountable for flooding the market with opioids and the resulting devastation of the opioid epidemic."
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 and Webb of Webb Law Centre. 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.
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)]
