HUNTINGTON, W.Va. — Claims by the City of Huntington and Cabell County Commission against the Big 3 opioid distributors in connection with the opioid epidemic remain alive following a decision from the U.S. Fourth Circuit Court of Appeals.
A 17-page order from the Court frames a certified question that it wants the West Virginia Supreme Court to answer in connection with what is a public nuisance under West Virginia law.
U.S. District Judge David Faber ruled in June 2022 that Huntington and Cabell County had failed to show, in a weeks long 2021 trial, that the dumping of millions of opioid pills in West Virginia by distributors AmerisourceBergen, Cardinal Health and McKesson was a public nuisance.
“The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington,” Faber said. “And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law.”
The plaintiffs appealed Faber’s decision to the Fourth Circuit. It’s order, issued Monday, wants to know why Faber said the opioid case before him wasn’t a public nuisance under West Virginia law while similar cases filed by other cities and counties in state court (Mass Litigation Panel) did proceed under the public nuisance law.
The specific question from the appeals court:
“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?”
A negative answer from the High Court will stop the appeal. A positive one would send it back to the Fourth Circuit for further review of Faber’s original decision.
Huntington attorney Paul Farrell, representing the Cabell County Commission, said the Fourth Circuit sees a conflict.
“The Fourth Circuit ruled there is a conflict between how a federal court judge and how a West Virginia state court interpreted West Virginia law,” Farrell told MetroNews. “The Fourth Circuit asked the West Virginia Supreme Court to resolve the conflict.”
Huntington Mayor Steve Williams said the ruling from the appeals court keeps the case alive. He said the Big 3 should be held responsible for their roles in the opioid epidemic.
“Commonsense would say they were creating a public nuisance and the fact that we have a chance to bring our arguments before the West Virginia State Supreme Court means everything,” Williams told MetroNews. “Hope is still alive in the state of West Virginia.”
Charleston attorney Rusty Webb, who has represented Huntington in the case, said the Fourth Circuit “did the right thing by putting it square before the West Virginia Supreme Court.”
Williams said the ruling keeps alive their hopes of receiving $2.5 billion in abatement funds from the distributors. The money would be used in a 15-eyar abatement plan.
“We’ve seen how many families have been affected and what has happened in the past but what we have to make sure that this never, ever happens again in our state,” Williams, a Democratic candidate for governor, said.
According to Faber’s June 2022 decision, most courts have rejected claims of public nuisance involving “the sale and distribution of a product.” The Supreme Court of Appeals for West Virginia has only applied the law in cases involving “conduct that interferes with public property or resources,” and West Virginia’s high court would likely decline to extend the law to situations related to opioid drugs.
“The extension of the law of nuisance to cover the marketing and sale of opioids is inconsistent with the history and traditional notions of nuisance,” he added. “The original legal character of nuisance was a wrongful disturbance of the enjoyment of real property or of its appurtenances falling short of a forcible trespass or ouster.”
But the Fourth Circuit order said the opioid cases argued before West Virginia’s Mass Litigation Panel has taken a different track.
“The West Virginia Mass Litigation Panel also has concluded in multiple instances that the distribution of opioids can form the basis of a public nuisance claim under West Virginia common law,” the Fourth Circuit order said.
Farrell said the Fourth Circuit’s ruling is just the next step in the case. He said there’s still potentially a long way to go with the appeal.
“Some say that the wheels of justice grind slowly but they grind nonetheless. This is but one step in the appeal process,” Farrell said.
Williams said Huntington knew it was in for the long haul when it first filed the lawsuit and the city won’t quit now.
“We have to hold onto our faith in our judicial system and by following through the process we will find justice for our citizens in the state,” Williams said.