A majority of West Virginia Supreme Court justices have declined to wade into a legal question about whether the influx of addictive opioid medications into West Virginia constitutes a nuisance to the citizens.
The question has been at the crux of litigation in West Virginia over the affects of the opioid epidemic.
Earlier this year, the 4th Circuit U.S. Court of Appeals asked West Virginia’s state Supreme Court to consider:
“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 matter has been under federal appellate review because 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 state Supreme Court delivered its response this afternoon, declining the certified question.
Justice Haley Bunn delivered the opinion of the court for the majority.
The tragic effects of the opioid epidemic in Huntington and Cabell County are well-known and accepted by the parties,” Bunn 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.”
Justice Beth Walker filed a concurring opinion: “I write separately to emphasize that this Court’s power to answer questions certified by our esteemed colleagues in the federal courts is not declined lightly here.”
Walker wrote that she cherishes the Supreme Court’s role as the final arbiter of West Virginia law, but concluded that in this case it is best 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 was sitting in with the Supreme Court.
Wooton wrote, “I believe this Court has the duty and responsibility to answer the certified question posed to us by the Fourth Circuit. 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.”
Huntington Mayor Patrick Farrell posted on social media that the outcome with the state Supreme Court doesn’t end the matter.
“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.”