West Virginia Public Nuisance Law Embraces Opioid Distribution Claims and Permits Monetary Abatement: City of Huntington v. AmerisourceBergen (4th Cir. 2025)

Introduction

In City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation, the Fourth Circuit issued a landmark opinion vacating a defense judgment after a lengthy bench trial and clarifying key doctrines at the intersection of public nuisance, the federal Controlled Substances Act (CSA), and abatement remedies under West Virginia law. The case arises from the opioid epidemic’s acute impact on Cabell County and the City of Huntington—described as “ground zero” of the national crisis. Local governments sued the “Big Three” opioid distributors—AmerisourceBergen, Cardinal Health, and McKesson—alleging that their distribution practices (including shipment of orders they knew or should have known were suspicious) created and maintained a public nuisance and proximately caused widespread community harms requiring abatement.

The district court rejected the claim, holding that West Virginia common law does not recognize a public nuisance cause of action predicated on product distribution, that plaintiffs failed to prove unreasonable interference or proximate cause, and that the requested abatement—a 15-year, $2.5 billion plan—was an impermissible request for money damages rather than equitable relief. On appeal, after the Supreme Court of Appeals of West Virginia declined to answer a certified question, the Fourth Circuit resolved novel state-law issues and remanded. The court held:

• Under West Virginia common law, conditions caused by the distribution of controlled substances can constitute a public nuisance.
• The district court misconstrued distributors’ duties under the CSA: the Act requires order-by-order suspicious-order detection, reporting, and non-shipment (absent due diligence), not merely avoiding sales to pharmacies acting as “adjuncts of the illicit market.”
• That error materially infected the court’s analysis of unreasonable interference, proximate causation (including “intervening cause” and remoteness), and abatement.
• Abatement in West Virginia is not confined to ceasing wrongful conduct; it may include equitable monetary funding to remediate ongoing public harms.

Summary of the Opinion

Senior Judge Keenan, writing for a unanimous panel, vacated the district court’s judgment and remanded with instructions. The court held:

• Public Nuisance Viability: West Virginia’s broad, Restatement (Second)-aligned definition of public nuisance encompasses unreasonable interference with public rights caused by opioid distribution; the state’s high court has not carved out “product-based” harms.
• CSA Duties Clarified: Distributors must design and operate systems to identify, report, and decline to ship “suspicious orders” (orders of unusual size, pattern, or frequency), or conduct due diligence before shipment; the district court’s narrower “illicit-pharmacy-only” standard was legal error.
• Unreasonable Interference: Because the district court’s use of a balancing test presupposes lawful conduct, its conclusion that defendants did not unreasonably interfere with public rights must be reconsidered under the correct CSA standard.
• Proximate Cause and Remoteness: The court faulted the district court for overlooking documentary evidence of threshold-limit inflation and underreporting of suspicious orders, and for treating prescribers/pharmacists/diversion as “intervening causes” without analyzing foreseeability and the interplay of concurrent causes under West Virginia law.
• Abatement: West Virginia permits abatement aimed at the harmful conditions (not just cessation of conduct) and allows equitable monetary payments to fund remediation measures; plaintiffs’ plan is not per se barred as “damages.”

Analysis

Precedents Cited and How They Shaped the Decision

• West Virginia’s Nuisance Framework
  • State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 488 S.E.2d 901 (W. Va. 1997): Public nuisance is an “act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons,” and a nuisance continues until the harmful condition is abated.
  • Duff v. Morgantown Energy Assocs., 421 S.E.2d 253 (W. Va. 1992) and Sharon Steel Corp. v. City of Fairmont, 334 S.E.2d 616 (W. Va. 1985): West Virginia adheres to Restatement (Second) of Torts § 821B—public nuisance is an “unreasonable interference with a right common to the general public.”
  • West v. National Mines Corp., 285 S.E.2d 670 (W. Va. 1981): Unreasonableness can be shown where conduct is proscribed by statute or regulation.
  • West Virginia Mass Litigation Panel and trial-court decisions (Morrisey v. AmerisourceBergen (2014); Brooke County Commission v. Purdue Pharma (2018)) recognized opioid-distribution-based public nuisance claims—decisions entitled to “some weight” in predicting state law.
• CSA Duties and Federal Guidance
  • 21 C.F.R. § 1301.71(a): Registrants must provide effective controls and procedures to guard against diversion.
  • 21 C.F.R. § 1301.74(b) and 21 U.S.C. § 832: Registrants must design and operate a system to identify and report suspicious orders; do not ship suspicious orders without due diligence.
  • Masters Pharm., Inc. v. DEA, 861 F.3d 206 (D.C. Cir. 2017) and DEA’s Southwood Pharm. (2007): Once an order is suspicious, a distributor must either decline to ship or perform due diligence and ship only if diversion is unlikely.
• Proximate Cause and Intervening Causes (West Virginia)
  • Sergent v. City of Charleston, 549 S.E.2d 311 (W. Va. 2001); McCoy v. Cohen, 140 S.E.2d 427 (W. Va. 1965): Proximate cause requires conduct that contributes in an “uninterrupted sequence” to injury; multiple proximate causes are possible.
  • Boyce v. Monongahela Power Co., 894 S.E.2d 913 (W. Va. 2023): Foreseeable downstream acts do not break causation.
  • Marcus v. Staubs, 736 S.E.2d 360 (W. Va. 2012): An intervening cause must operate independently and be the sole proximate cause to break the chain.
  • Wal-Mart Stores E., L.P. v. Ankrom, 854 S.E.2d 257 (W. Va. 2020); Robertson v. LeMaster, 301 S.E.2d 563 (W. Va. 1983): Remoteness and foreseeability are intertwined in proximate-cause analysis.
  • A.D.A. v. Johnson & Johnson, 912 S.E.2d 37 (W. Va. Ct. App. 2024): Upstream conduct can proximately cause injury despite downstream prescriber or patient involvement.
• Abatement Remedies
  • Kermit Lumber, 488 S.E.2d at 925 n.29 and West, 285 S.E.2d at 678: Abatement targets the harmful conditions affecting public health and may require the responsible party to remediate them.
  • Equity’s breadth: Hartley v. Henretta, 13 S.E. 375 (W. Va. 1891); Town of Weston v. Ralston, 36 S.E. 446 (W. Va. 1900); federal analogs United States v. Price, 688 F.2d 204 (3d Cir. 1982); United States v. Apex Oil, 579 F.3d 734 (7th Cir. 2009) confirm that equitable injunctions can compel expenditures.
  • Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248 (3d Cir. 2005): Trial courts may tailor and pare abatement plans and equitably adjust costs.
• Contrasting State Approaches (Not Controlling Here)
  • Ohio (2024): Statutory abrogation of some absolute public-nuisance claims tied to products—distinguishable because West Virginia has no comparable statute.
  • Maine (2025): Private-entity plaintiffs failed to allege particularized injury—distinguishable because this case involves public entities.
  • Oklahoma (2021) Hunter: Limited public nuisance under state statutes to crimes or property injury; inapposite to West Virginia’s common-law framework and Restatement (Second) orientation.

Legal Reasoning: How the Court Reached Its Conclusions

1. Scope of West Virginia Public Nuisance

   The Fourth Circuit predicted that West Virginia’s high court would adhere to Restatement (Second) § 821B and its own broad precedents (Duff, Sharon Steel, Kermit Lumber), allowing claims for unreasonable interference with public rights, including public health, even when harms arise from lawful products. The court declined to import the Restatement (Third)’s product-based carveout, especially given state trial-court experience with opioid cases and the state high court’s repeated reliance on the Restatement (Second).

2. CSA Duties Misconstrued Below

   The district court mistakenly collapsed distributors’ obligations to a single question—whether a pharmacy was an “adjunct of the illicit market.” The Fourth Circuit corrected the standard: distributors must continuously monitor individual orders, identify and report suspicious orders, and either block shipment or investigate and ship only if diversion is unlikely. This granular, order-level duty is central to the CSA’s closed system and critical to preventing diversion before it matures into overtly illicit pharmacy operations.

3. Unreasonable Interference Analysis Must Start with the Lawfulness of Conduct

   Because the district court used a balancing test premised on lawful conduct, its analysis cannot stand if conduct may have violated or undermined the CSA’s suspicious-order regime. On remand, the court must assess the evidence (including threshold-limit practices and reporting patterns) under the correct legal duties to determine whether the distributors’ conduct was unlawful or unreasonable within § 821B.

4. Proximate Cause and Intervening Acts

   The court emphasized that multiple proximate causes can coexist. It directed the district court to reconsider whether distributors’ practices—such as repeatedly raising threshold limits, underreporting suspicious orders, and continuing shipments to pharmacies that serviced known “outlier” prescribers—were substantial factors in an unbroken sequence leading to public harms. The district court must also evaluate foreseeability: in West Virginia, foreseeable downstream conduct by prescribers, pharmacists, or third-party diverters does not sever causation. An intervening cause breaks the chain only if it operates independently and is the sole proximate cause.

5. Abatement as an Equitable, Remedial Tool

   The Fourth Circuit held that West Virginia abatement is not confined to stopping the wrongful conduct; it extends to eliminating the harmful public-health conditions that constitute the nuisance. Equitable abatement may include monetary funding for treatment, prevention, recovery, and special-population services if reasonably calculated to abate the nuisance. The district court must analyze the plaintiffs’ proposed plan on the merits and may tailor scope and cost.

Impact: Why This Opinion Matters

• For West Virginia and Beyond
  • Establishes that, under West Virginia law, government plaintiffs may pursue public-nuisance claims for harms stemming from controlled-substance distribution.
  • Confirms that public nuisance and products liability are distinct regimes with different purposes and remedies; nuisance is not categorically barred for product-related harms.
• Compliance and Enforcement
  • Clarifies distributors’ CSA obligations: robust suspicious-order monitoring, reporting, and non-shipment without due diligence are not optional; manipulating thresholds to reduce “suspicious” flags invites liability.
  • Data analytics and awareness of “outlier” prescribers become legal touchpoints; failure to act on available indicators may evidence unreasonable conduct.
• Litigation Strategy
  • Proximate-cause defenses predicated on prescriber/pharmacist/diverter “intervening acts” face a heightened foreseeability analysis and cannot short-circuit causation at the pleading or bench-trial stage without careful factfinding.
  • Abatement relief can include equitable monetary funding to remediate public-health conditions; defendants cannot defeat nuisance claims by labeling comprehensive abatement plans as “damages.”
• MDL and Municipal Litigation
  • Provides a detailed template for re-evaluating nuisance and causation under the CSA in remanded bellwether cases and related suits filed by public entities.
  • Creates persuasive authority for courts applying similar Restatement (Second)-based state nuisance doctrines.

Complex Concepts Simplified

• Public vs. Private Nuisance
  • Public nuisance: Unreasonable interference with a right common to the general public (e.g., public health, safety, environment).
  • Private nuisance: Substantial, unreasonable interference with a private individual’s use and enjoyment of land.
• Closed Regulatory System (CSA)
  • A chain of registered actors—manufacturers, distributors, and dispensers (pharmacies, prescribers)—through which controlled substances move lawfully.
  • Each registrant has distinct duties to prevent diversion; oversight is shared with DEA, but self-policing is required.
• Suspicious Orders
  • Orders of unusual size, substantial deviation from normal patterns, or unusual frequency; must be flagged, reported to DEA, and not shipped without due diligence.
  • Designing threshold formulas that mask suspicious orders can undermine compliance.
• Threshold Limits
  • Distributor-set monthly caps for a pharmacy’s orders; raising caps repeatedly can reduce flagged orders but may increase diversion risk.
• Proximate Cause and Intervening Causes
  • Proximate cause: A substantial factor that contributes in an unbroken sequence to the injury.
  • Intervening cause: A later event that independently becomes the sole proximate cause; foreseeable downstream conduct generally does not sever causation in West Virginia.
• Abatement vs. Damages
  • Abatement (equitable): Court-ordered measures (including monetary expenditures) to stop and remediate the ongoing harm of a public nuisance.
  • Damages (legal): Compensation for past injuries; abatement targets prospective and continuing harms to public rights.
• Balancing Test for Unreasonableness
  • Weighs utility of conduct against the gravity and avoidability of harm—but only when the conduct is otherwise lawful. If conduct violates statutes/regulations, unreasonableness can be established without balancing.

What the District Court Must Do on Remand

• Reassess whether defendants’ conduct constituted an unreasonable interference with public rights under the correct CSA duties (order-by-order suspicious-order monitoring, reporting, and non-shipment or due diligence).
• Reevaluate proximate causation considering:
  • Documentary evidence of threshold-limit increases and their effect on suspicious-order reporting.
  • Interplay with “outlier” prescribers and the distributors’ access to dispensing data.
  • Foreseeability of prescriber/pharmacist/diverter conduct and whether any such conduct was truly an independent, sole proximate cause.
• If liability is found, analyze the plaintiffs’ abatement plan on its merits, trimming or tailoring components and costs as equity requires, rather than rejecting the plan as per se “damages.”

Conclusion

City of Huntington v. AmerisourceBergen reshapes the legal landscape for public-entity opioid litigation under West Virginia law. The Fourth Circuit confirms that:

• Public nuisance claims can be predicated on the distribution of controlled substances where the evidence shows unreasonable interference with public rights.
• Distributors’ CSA obligations are granular and proactive: design systems to identify suspicious orders, report them, and refrain from shipping unless due diligence dispels diversion risks.
• Proximate causation in West Virginia is a nuanced, fact-driven inquiry that often involves multiple concurrent causes and a rigorous foreseeability analysis; “intervening cause” defenses cannot be used as a broad shield.
• Abatement is a flexible equitable remedy that can compel monetary funding to remediate ongoing public harms, not just cessation of the underlying conduct.

On remand, the district court must apply these clarified principles to a voluminous record that includes evidence of threshold-limit manipulation, underreporting of suspicious orders, and knowledge of “outlier” prescribers. The opinion is poised to influence not only West Virginia nuisance jurisprudence and opioid enforcement but also broader debates over the role of public nuisance in addressing large-scale public-health crises.