Judicial Restraint and the Necessity of Factual Foundations in Certified Public Nuisance Questions

Introduction

This commentary examines Justice Walker’s concurring opinion in City of Huntington and Cabell County Commission v. AmerisourceBergen Drug Corporation, Cardinal Health, Inc., and McKesson Corporation, decided by the Supreme Court of West Virginia on May 12, 2025. The certified question arose after the Fourth Circuit Court of Appeals sought guidance on whether West Virginia’s common-law public nuisance doctrine extends to the distribution of controlled substances—specifically opioids—and, if so, what elements govern such a claim. The underlying federal suit, brought by the City of Huntington and Cabell County Commission ("Plaintiffs") against three major pharmaceutical distributors ("Distributors"), alleged that the distributors “created, perpetuated, and maintained” an opioid epidemic in Plaintiffs’ communities by shipping suspiciously large opioid orders. After the District Court dismissed the public nuisance claim as a matter of law, Plaintiffs appealed, prompting certification of the legal question to the West Virginia Supreme Court of Appeals.

Summary of the Judgment

Justice Walker, concurring with the majority’s decision not to answer the certified question, emphasizes two core points:

Restraint in Answering Certified Questions: Although West Virginia law empowers the Supreme Court of Appeals to resolve certified questions from federal courts, it is not bound to do so in every instance. The Court must refrain where the record lacks sufficient factual detail to ground a reasoned legal conclusion.
Absence of Material Facts: The certification order contained only two undisputed facts—the existence of an opioid epidemic in Plaintiffs’ communities and the distribution of opioids within a “closed system” regulated by the Controlled Substances Act (CSA). It omitted critical details about the Distributors’ specific conduct, compliance or non-compliance with CSA duties, the precise public right allegedly interfered with, and the causal link between distribution and harm. Without these, any pronouncement would risk being an advisory opinion rather than a determinative legal ruling.

Analysis

Precedents Cited

W. Va. Code § 51-1A-3 & § 51-1A-6: Statutory authorization for certified questions, mandating inclusion of “facts relevant to the question” in certification orders.
United States v. Taylor, 596 U.S. 845, 859 (2022): Acknowledgement of West Virginia Supreme Court of Appeals as the “final arbiter” of state law, underscoring respectful deference but not absolute obligation.
Duff v. Morgantown Energy Associates, 187 W. Va. 712, 716 n.6, 421 S.E.2d 253, 257 n.6 (1992): Definition of public nuisance as “an unreasonable interference with a right common to the general public,” consistent with Restatement (Second) of Torts § 821B(1).
Hark v. Mountain Fork Lumber Co., 127 W. Va. 586, 595-96, 34 S.E.2d 348, 354 (1945): Public nuisance as an act or condition “that unlawfully operates to hurt or inconvenience an indefinite number of persons.”
Martin v. Williams, 141 W. Va. 595, 612, 93 S.E.2d 835, 845 (1956) & Sharon Steel Corp. v. City of Fairmont, 175 W. Va. 479, 334 S.E.2d 616 (1985): Emphasizing that nuisance determination is “one of degree” and generally a question of fact.
Harless v. Workman, 145 W. Va. 266, 275, 114 S.E.2d 548, 553 (1960): Reiterating that nuisance inquiries rest on factual findings.
State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719 (Okla. 2021): Oklahoma Supreme Court’s decision that public nuisance law does not extend to prescription opioid manufacturing, marketing, and sales, after a fully developed factual record showing lack of control over distribution, prescribing, dispensing, and intervening causes.
In re Richards, 223 A.2d 827 (Me. 1966): Maine Supreme Judicial Court’s refusal to answer a certified question where material facts remained unresolved, deeming any response advisory.

Legal Reasoning

Justice Walker’s concurrence unpacks the following strands of reasoning:

Statutory and Constitutional Justiciability: Under W. Va. Code § 51-1A-3 and § 51-1A-6, certified questions must include all facts “relevant to the question,” ensuring the Court’s answer will be decisive rather than advisory. Federal constitutional limits on advisory opinions also dictate that the Court only decide live controversies where its ruling resolves the proceeding.
Factual Basis for Public Nuisance: The definition of public nuisance is context-sensitive and fact-intensive. Prior case law instructs that courts evaluate:
- The nature and extent of the interference with a public right.
- The reasonableness of the defendant’s conduct.
- The causal relationship between the conduct and the alleged harm.
Absent detailed facts on each element, no meaningful legal rule can be articulated.
Comparative Jurisprudence: Both Oklahoma and Maine high courts illustrate that courts with broad public nuisance questions demand concrete records. Oklahoma’s Hunter decision hinged on discrete findings about (a) control over the product post-sale, (b) absence of a public right to be free from potential misuse, and (c) remoteness of harm. Maine’s Richards decision refused to address a certified question where facts were hypothetical.

Impact

The concurring opinion’s emphasis on factual completeness will influence:

Certified Questions Practice: Federal and state trial courts will be alert to include detailed factual findings and definitions of rights and harms when certifying questions on state law.
Public Nuisance Litigation: Plaintiffs seeking to extend public nuisance doctrine to novel contexts—such as opioid distribution—must develop a robust record on each element: defendant’s specific conduct, public rights allegedly interfered with, and causal link to community harms.
Judicial Restraint Doctrine: Reinforces a trend of courts declining broad pronouncements absent a fully developed factual matrix, curbing advisory opinions and preserving separation of powers.

Complex Concepts Simplified

Certified Question: A procedural device by which a federal court asks a state’s highest court to interpret state law. It must present both a clear legal question and the relevant facts.
Public Nuisance: Under West Virginia law, an “unreasonable interference with a right common to the general public,” such as public health, safety, or passable highways.
Controlled Substances Act (CSA) “Closed System”: The regulatory framework requiring manufacturers, distributors, and pharmacists to prevent diversion of controlled substances through record-keeping, suspicious order monitoring, and reporting.
Proximate Cause: A legal concept requiring that the defendant’s conduct be a substantial factor in causing the plaintiff’s harm, without too many unforeseeable intervening events.
Advisory Opinion: A judicial ruling on an abstract or hypothetical dispute that does not resolve a live controversy. State and federal constitutions generally prohibit such opinions.

Conclusion

Justice Walker’s concurrence in City of Huntington v. AmerisourceBergen underscores the imperative that certified questions be grounded in a fully articulated factual record. The opinion clarifies that:

The West Virginia Supreme Court of Appeals will not render advisory answers; its power to resolve state-law questions depends on concrete facts that make the response genuinely determinative.
Public nuisance claims—especially those seeking to extend traditional doctrine into new arenas like opioid distribution—require courts to assess reasonableness, public rights, and causation on a fact-by-fact basis.
Future litigants and trial courts must heed the precedents from West Virginia, Oklahoma, Maine, and elsewhere by compiling detailed findings before invoking the certification mechanism.

In shaping the law of public nuisance and the practice of certified questions, this concurring opinion firmly anchors judicial decision-making in factual reality and reaffirms the Supreme Court of Appeals’ duty to act only when its intervention can truly resolve a live legal dispute.