Expansion of Public Nuisance Liability to Opioid Distribution

Introduction

City of Huntington and Cabell County Commission v. AmerisourceBergen Drug Corporation is a certified-question appeal before the Supreme Court of Appeals of West Virginia. The Fourth Circuit asked whether “conditions caused by the distribution of a controlled substance” can give rise to a public nuisance under West Virginia common law, and if so, what elements define that claim. The petitioners—two West Virginia governmental entities ravaged by the opioid crisis—seek clarity on their ability to pursue public nuisance remedies against major drug distributors. Chief Justice Wooton, joined by Judge Salango, dissents from the Court’s refusal to answer, arguing that the certified question falls squarely within West Virginia Code § 51-1A-3 and that an answer is both appropriate and necessary.

Summary of the Judgment

The majority declined to answer the Fourth Circuit’s certified question, concluding that the question was not dispositive of the entire case. In her dissent, Chief Justice Wooton argues that:

West Virginia Code § 51-1A-3 authorizes the Court to answer certified questions that are determinative of an issue in a pending cause.
No provision in state law requires that a certified question resolve an entire case.
The Fourth Circuit’s question is dispositive of key issues—namely whether opioid distribution can constitute a public nuisance and what elements apply.
Under longstanding 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 dissent would answer “yes” to the first question and articulate four elements of an opioid-related public nuisance claim.

Analysis

Precedents Cited

The dissent draws on a range of cases and statutes to support its position:

West Virginia Code § 51-1A-3 (2016): Grants this Court authority to answer certified questions when no controlling state law exists and the answer would be determinative of an issue.
Hark v. Mountain Fork Lumber Co., 127 W. Va. 586 (1945): Defines public nuisance as an act or condition that injures an indefinite number of persons.
Sharon Steel Corp. v. City of Fairmont, 175 W. Va. 479 (1985): Clarifies the distinction between public and private nuisance and affirms that public officials are normally charged with abatement.
Bass v. Coltelli, 192 W. Va. 516 (1994): Holds that certified questions should only be answered if the case disposition depends wholly or principally on the answer—an approach the dissent views as non-binding and unsupported by the text of § 51-1A-3.
Various West Virginia orders refusing prohibition petitions in opioid litigation (2016, 2019, 2022), revealing repeated avoidance of the underlying certification question.
Other appellate decisions on motions to dismiss and summary judgments where certified questions were routinely answered.

Legal Reasoning

Chief Justice Wooton’s dissent centers on statutory interpretation and policy:

Statutory Text Over Procedural “Formulas”: Section 51-1A-3 permits the Court to answer any certified question that is determinative of an issue. Nowhere does the statute demand the question resolve an entire case.
Judicial Precedent vs. Non-Binding Language: The dissent emphasizes that the Bass formulation was never adopted as a syllabus point, and that it was borrowed from a North Dakota case with a different certification statute.
Policy and Pragmatism: The Court should use the flexible tool provided by the Legislature to resolve questions that impede adjudication of major public harms. The opioid crisis is described as a “flood of epic proportions,” and delay only prolongs governmental and societal suffering.
Erie Guess vs. State Clarification: Federal courts are ill-equipped to divine West Virginia’s public nuisance law. The state’s highest court is the proper forum to articulate controlling state law.
Elements of an Opioid Public Nuisance Claim: The dissent would adopt four elements:
- Interference with a public right—harm to an indefinite number of persons.
- Unreasonableness of the distributor’s conduct under the facts.
- Proximate causation between distribution and the harmful condition.
- Equitable relief in the form of abatement or funding of remediation efforts.

Impact

If adopted, the dissent’s approach would have profound consequences:

It would validate public nuisance as a cause of action in opioid litigation, potentially unlocking billions in abatement and remediation funds.
It would set clear rules for trial courts and litigants, reducing confusion over state law in multidistrict and federal court proceedings.
It would reinforce the state judiciary’s role in defining common law and curb “Erie guesses” by federal tribunals.
It could trigger renewed policy debates about the scope of distributor liability and the boundaries of public nuisance doctrine.

Complex Concepts Simplified

Certified Question: A legal issue sent by one court to a higher court for definitive interpretation of state law.
Public Nuisance: An act or condition that harms or inconveniences an unspecified segment of the community, distinct from private nuisances affecting individual plaintiffs.
Erie Guess: When a federal court, lacking authoritative state precedent, makes an educated guess about how a state’s highest court would decide a legal question.
Abatement: Equitable relief ordering a defendant to eliminate or fund the removal of a public nuisance rather than monetary damages for past harm.

Conclusion

Chief Justice Wooton’s dissent urges the Supreme Court of Appeals to answer a certified question on public nuisance in the context of opioid distribution. By interpreting West Virginia Code § 51-1A-3 as a broad grant of authority, the dissent would establish that distributors’ opioid sales can support public nuisance claims and articulate clear elements for such claims. The decision carries immense stakes for opioid-ravaged communities, promises uniformity in state law, and underscores the judiciary’s responsibility to resolve questions critical to public welfare. This dissent highlights the tension between procedural forms and substantive justice, advocating for timely clarification to address one of West Virginia’s most pressing public health crises.