Declination of Certified Question on Public Nuisance from Opioid Distribution

Introduction

In City of Huntington and Cabell County Commission v. AmerisourceBergen Drug Corporation, the Supreme Court of Appeals of West Virginia was asked by the Fourth Circuit to clarify whether conditions caused by the distribution of a controlled substance can support a public nuisance claim under West Virginia common law, and if so, what the elements of that claim are. The underlying litigation arose from municipal suits by the City of Huntington and Cabell County against three national opioid distributors—AmerisourceBergen, Cardinal Health, and McKesson—alleging that excessive shipments of prescription opioids fueled a severe opioid epidemic in their jurisdiction. After a ten‐week bench trial in federal district court, the plaintiffs lost on their public nuisance theory. They appealed, disputing key factual findings and legal conclusions. The Fourth Circuit, confronted with unsettled facts, certified the purely legal question as to the scope of public nuisance doctrine. Facing numerous and contested factual findings—and with no uncontested record on which to decide—West Virginia’s high court respectfully declined to answer the question at this time.

Summary of the Judgment

The West Virginia Supreme Court of Appeals, sitting en banc, issued a 19‐page opinion in which it:

Confirmed its obligation to apply a de novo standard in answering certified questions of law under the Uniform Certification of Questions of Law Act (W. Va. Code §§ 51-1A-1 to ‑13).
Stated that it must assume the certifying court’s factual findings are correct, and that the record must be sufficiently precise and undisputed on the point of law presented.
Emphasized that public nuisance is traditionally a question of fact and that the existence of a nuisance depends on whether there is unreasonable interference with a public right.
Observed that the plaintiffs on appeal vigorously contest the district court’s factual findings about the distributors’ compliance with the Controlled Substances Act, suspicious‐order monitoring systems, causation, and reasonableness.
Concluded that, because the fundamental facts are in dispute and the related legal rulings are under appellate review, any answer to the certified question would be advisory and premature.
Formally declined to answer the Fourth Circuit’s certified question.

Analysis

1. Precedents Cited

Light v. Allstate Insurance Co., 203 W. Va. 27 (1998) – establishes that this Court reviews certified questions de novo.
Bass v. Coltelli, 192 W. Va. 516 (1994) – explains requirements for certification (undisputed facts, controlling legal issue).
Barefield v. DPIC Companies, 215 W. Va. 544 (2004) – applies Bass’s framework to federal certified questions.
Valentine v. Sugar Rock, 234 W. Va. 526 (2014) – clarifies that the certification order is the primary record and allows consideration of relevant federal filings.
Harshbarger v. Gainer, 184 W. Va. 656 (1991) – warns against issuing advisory opinions.
Sharon Steel Corp. v. City of Fairmont, 175 W. Va. 479 (1985) – defines public nuisance doctrine and its factual nature.

2. Legal Reasoning

At the heart of the decision is the Uniform Certification of Questions of Law Act’s mandate that this Court answer only pure questions of state law resting on agreed‐upon facts. Public nuisance claims in West Virginia are fact‐intensive inquiries—whether an act “unlawfully operates to hurt or inconvenience an indefinite number of persons.” The federal district court found, after extensive factual findings, that the distributors complied with their duties under the federal Controlled Substances Act (CSA), had effective suspicious‐order monitoring, did not unreasonably fuel diversion, and that any causal link to the opioid crisis was too remote. The plaintiffs dispute those very findings on appeal.

Because the Fourth Circuit’s certification order does not supply an undisputed factual record sufficient to isolate a single legal question, any ruling here would amount to an advisory opinion—not one “pertinent and inevitable” to the federal case. Without clarity on whether the distributors actually violated statutory duties or whether their conduct was a proximate cause, the Court cannot define the contours of a public nuisance cause of action in this context.

3. Potential Impact

Reinforces the strict limits on state supreme courts when answering certified questions from federal courts: no factual second‐guessing, no premature advisory opinions.
Highlights the necessity of a fully stipulated and undisputed record before certifying intricate claims such as public nuisance against large‐scale commercial defendants.
Signals to litigants and lower courts that complex, fact‐driven doctrines (public nuisance, causation, unreasonableness) must be resolved on the merits before a state court can clarify the law.
Leaves open the possibility that, on remand or further appeal, a clean record could prompt a future certification or direct ruling on public nuisance in opioid‐distribution cases.

Complex Concepts Simplified

De Novo Review – The appellate court examines legal questions freshly, without deferring to the certifying court’s rulings.
Uniform Certification of Questions of Law Act – A state‐law mechanism permitting federal courts to ask the state supreme court to interpret state law.
Public vs. Private Nuisance – Public nuisances affect the public at large; private nuisances affect an individual or a small group. Proof of a public nuisance turns on whether a defendant’s conduct unreasonably interfered with a public right.
MDL and Bellwether Trials – Multidistrict litigation consolidates similar cases nationwide for efficiency; bellwether trials are test cases intended to guide settlements and future trials.
Suspicious Order Monitoring – Under the CSA, distributors must detect and report orders of controlled substances that might indicate diversion to non‐medical channels.
Advisory Opinions – Courts avoid “advisory decrees”; they only decide live, concrete disputes with a finalized factual record.

Conclusion

The Supreme Court of Appeals of West Virginia has carefully declined to chart new territory on public nuisance claims arising from licensed distribution of opioids, deferring until the record is settled and free of material disputes. While this decision does not foreclose future clarification of nuisance doctrine in opioid or other contexts, it underscores the interplay between fact and law in certified‐question practice and reaffirms West Virginia’s aversion to issuing advisory opinions. Parties and lower courts should ensure that foundational facts are established and undisputed before seeking a state supreme court’s legal pronouncement.