USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1819
CITY OF HUNTINGTON, WEST VIRGINIA,
Plaintiff - Appellant,
v.
AMERISOURCEBERGEN DRUG CORPORATION; CARDINAL HEALTH,
INC.; MCKESSON CORPORATION,
Defendants - Appellees.
------------------------------
LEGAL SCHOLARS,
Amicus Curiae,
THE NATIONAL ASSOCIATION OF COUNTIES; THE COUNTY
EXECUTIVES OF AMERICA; THE NATIONAL LEAGUE OF CITIES; THE U.S.
CONFERENCE OF MAYORS; THE INTERNATIONAL MUNICIPAL
LAWYERS ASSOCIATION; THE WEST VIRGINIA SHERIFFS’
ASSOCIATION; AMERICAN PUBLIC HEALTH ASSOCIATION; NATIONAL
ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS,
Amici Supporting Appellant.
No. 22-1822
CABELL COUNTY COMMISSION,
Plaintiff - Appellant,
v.
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AMERISOURCEBERGEN DRUG CORPORATION; CARDINAL HEALTH,
INC.; MCKESSON CORPORATION,
Defendants - Appellees,
and
CVS HEALTH CORPORATION; WALGREENS BOOTS ALLIANCE, INC.; THE
KROGER COMPANY; RITE AID CORPORATION,
Defendants.
------------------------------
LEGAL SCHOLARS,
Amicus Curiae,
THE NATIONAL ASSOCIATION OF COUNTIES; THE COUNTY
EXECUTIVES OF AMERICA; THE NATIONAL LEAGUE OF CITIES; THE U.S.
CONFERENCE OF MAYORS; THE INTERNATIONAL MUNICIPAL
LAWYERS ASSOCIATION; THE WEST VIRGINIA SHERIFFS'
ASSOCIATION; AMERICAN PUBLIC HEALTH ASSOCIATION; NATIONAL
ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS,
Amici Supporting Appellant.
Appeals from the United States District Court for the Southern District of West Virginia,
at Huntington. David A. Faber, Senior District Judge. ( íFYí; 3:17ícví)
Argued: -DQXDU\ Decided: 0DUFK
Before KING and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.
Question certified to the Supreme Court of Appeals of West Virginia by published order.
Senior Judge Keenan directed entry of the order with the concurrence of Judge King and
Judge Benjamin.
2
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ARGUED: David Charles Frederick, KELLOGG, HANSEN, TODD, FIGEL &
FREDERICK P.L.L.C., Washington, D.C., for Appellant. Paul William Schmidt,
COVINGTON & BURLING, LLP, Washington, D.C.; Enu Mainigi, WILLIAMS &
CONNOLLY LLP, Washington, D.C; Robert A. Nicholas, REED SMITH, LLP,
Philadelphia, Pennsylvania, for Appellees. ON BRIEF: Louis M. Bograd, Michael J.
Quirk, MOTLEY RICE LLC, Washington, D.C., for Appellant City of Huntington, West
Virginia. Anthony J. Majestro, Christina L. Smith, POWELL & MAJESTRO, PLLC,
Charleston, West Virginia, for Appellant Cabell County Commission. Ariela M. Migdal,
Lillian V. Smith, Matthew N. Drecun, Kathleen W. Hickey, KELLOGG, HANSEN,
TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Appellants. F. Lane
Heard III, George A. Borden, Ashley W. Hardin, WILLIAMS & CONNOLLY LLP,
Washington, D.C., for Appellee Cardinal Health, Inc. Timothy C. Hester, Christian J.
Pistilli, Stephen F. Petkis, Nicole M. Antoine, COVINGTON & BURLING LLP,
Washington, D.C., for Appellee McKesson Corporation. Kim M. Watterson, Pittsburgh,
Pennsylvania, Joseph J. Mahady, REED SMITH LLP, Philadelphia, Pennsylvania, for
Appellee AmerisourceBergen Drug Corporation. Leslie Kendrick, Charlottesville,
Virginia; Michael J. Skoler, SOKOLOVE LAW, LLC, Chestnut Hill, Massachusetts;
Ruthanne M. Deutsch, Hyland Hunt, DEUTSCH HUNT PLLC, Washington, D.C., for
Amici Legal Scholars. Robert B. Nealon, NEALON & ASSOCIATES, P.C., Alexandria,
Virginia; J. Carl Cecere, CECERE PC, Dallas, Texas, for Amici The National Association
of Counties, The County Executives of America, The National League of Cities, The U.S.
Conference of Mayors, The International Municipal Lawyers Association, and the West
Virginia Sheriffs’ Association. Henry G. Garrard, III, BLASINGAME, BURCH,
GARRARD & ASHLEY, P.C., Athens, Georgia; Deepak Gupta, Gregory A. Beck,
GUPTA WESSLER PLLC, Washington, D.C., for Amici American Public Health
Association and National Association of County and City Health Officials.
3
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ORDER
BARBARA MILANO KEENAN, Senior Circuit Judge:
The United States Court of Appeals for the Fourth Circuit, exercising the privilege
afforded by the State of West Virginia through the Uniform Certification of Questions of
/DZ$FW:HVW9LUJLQLD&RGH-1A-WKURXJK-1A-13, requests that the Supreme
Court of Appeals of West Virginia exercise its discretion to answer the following question:
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?
A negative answer to this question is outcome determinative in the present appeal.
Moreover, in our view, the fact that there is no controlling appellate decision, constitutional
provision, or statute of West Virginia answering this question renders it appropriate for
certification. See :9D&RGH–1A–3. We acknowledge that the Supreme Court of
Appeals of West Virginia may restate this question. See id. -1A--1A- D
I.
A.
The Cabell County Commission and the City of Huntington, West Virginia (the
SODLQWLIIV ILOHGVXLWLQDJDLQVWWKUHHGLVWULEXWRUVRIRSLRLGV $PHULVRXUFH%HUJHQ'UXJ
Corporation, Cardinal Health, Inc., and McKesson Corporation (the distributors or the
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 5 of 20
defendants). 1 The plaintiffs alleged that these companies “created, perpetuated, and
maintained” the opioid epidemic by repeatedly shipping to pharmacies orders of opioids in
quantities that the distributors “knew or should have known exceed[ed] any legitimate
market” for the drugs. The plaintiffs contended that the defendants’ conduct resulted in a
public nuisance that was subject to abatement under West Virginia common law.
$IWHUKROGLQJDEHQFKWULDOLQWKHGLVWULFWFRXUWLVVXHGDQRSLQLRQXQGHU)HGHUDO
5XOH RI &LYLO 3URFHGXUH UXOLQJ LQ IDYRU RI WKH GLVWULEXWRUV City of Huntington v.
AmerisourceBergen Drug Corp. ) 6XSS G 6': 9D $V D
threshold matter, the district court held that West Virginia’s common law of public
nuisance did not cover the plaintiffs’ claims. Id. DW7KHdistrict court, recognizing
that the Supreme Court of Appeals of West Virginia (Supreme Court of Appeals) had not
ruled on this issue, predicted that the state court would decline to extend West Virginia’s
common law of public nuisance to the sale, distribution, and manufacture of opioids. Id.
DW,QUHDFKLQJWKLVFRQFOXVLRQWKHGLVWULFWFRXUWFLWHGWKH5HVWDWHPHQW 7KLUG RI
Torts and observed that the Supreme Court of Appeals had applied the common law of
public nuisance only “in the context of conduct that interferes with public property or
resources.” Id. DW7KHdistrict court also held that extension of the common law of
1
The plaintiffs originally filed separate lawsuits that included other parties and
claims. However, after the United States Judicial Panel on Multidistrict Litigation
transferred both Huntington’s and Cabell County’s suits to the Northern District of Ohio
(the MDL court), the MDL court designated the suits as “Track Two” bellwether cases and
directed the parties to “streamline” their claims. The plaintiffs thereafter narrowed their
claims to a public nuisance suit against the three distributor defendants in the present
appeal. The MDL court later remanded the case to the Southern District of West Virginia,
which consolidated the cases for trial.
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 6 of 20
public nuisance to cover the plaintiffs’ claims would be “inconsistent with the history and
traditional notions of nuisance.” Id. The district court did not find persuasive two West
Virginia circuit court decisions in which those courts held that the common law of public
nuisance may apply to the sale and distribution of opioids. 2 Id. The district court
explained:
To apply the law of public nuisance to the sale, marketing and distribution of
products would invite litigation against any product with a known risk of
harm, regardless of the benefits conferred on the public from proper use of
the product. The economic harm and social costs associated with these new
causes of action are difficult to measure but would obviously be extensive.
Id. DW
7KHGLVWULFWFRXUWDOVRUHMHFWHGWKHSODLQWLIIV¶SURSRVHGUHPHG\QDPHO\D-year
“Abatement Plan” developed by Dr. G. Caleb Alexander, an expert in opioid abatement
intervention. Id. DW – 'U $OH[DQGHU WHVWLILHG DW WULDO WKDW WKH RSLRLG
epidemic and the resulting harms from the epidemic were “reasonably certain to continue”
DEVHQW LPSOHPHQWDWLRQ RI D billion abatement plan, which would address
“[p]revention, treatment, recovery, and special populations.”
The district court held that this relief was “not properly understood” as falling within
“the nature of abatement.” Id. DW7KHFRXUWIRXQGWKDWWKHSODQGLGQRWUHVWULFWWKH
defendants’ conduct or their distribution of opioids but generally proposed programs and
2
See id. DW (citing Brooke Cnty. Comm’n v. Purdue Pharma L.P., No. 17-C-
:/ :9D&LU&W'HF writ denied1R - :
9D-XQH DQGState ex rel. Morrisey v. AmerisourceBergen Drug Corp., No. 12-
C-:/ :9D&LU&W'HF writ denied1R- :
9D-DQ
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 7 of 20
services to address “the attendant harms caused by opioid abuse and addiction.” Id. DW
The court reasoned that the costs of the plan had “no direct relation to any of [the
distributors’] alleged misconduct” and thus did not qualify as abatement. Id. DW 3
After the district court entered final judgment for the distributors, the plaintiffs
timely appealed.
B.
Before setting forth the parties’ arguments, we summarize the statutory and
regulatory framework under which the United States Drug Enforcement Administration
(DEA) gives persons and entities the authority to distribute controlled substances, namely,
the &RQWUROOHG 6XEVWDQFHV $FW &6$ 86& – DQG LWV LPSOHPHQWLQJ
regulations. We later briefly describe the specific facts giving rise to the plaintiffs’ public
nuisance claim against the distributors.
3
The district court also held that the plaintiffs had not shown that the distributors’
conduct was unreasonable or was a proximate cause of any nuisance. Id. DW
Notably, however, we need address the district court’s alleged errors on reasonableness
and causation only if the Supreme Court of Appeals recognizes public nuisance as a
cognizable claim in this case. We thus conclude that the district court’s holdings in that
regard are not “relevant to the [certified] question[s],” and we do not describe them here.
W. Va. Code § -1A- D
In their separate challenges to the district court’s holdings on reasonableness and
causation, the plaintiffs contend that the distributors violated their duties under the
Controlled Substances Act and the West Virginia Controlled Substances Act by failing to
identify or investigate suspicious orders of opioids, and by raising ordering thresholds to
allow pharmacies to place large orders of opioids “without triggering review.” We do not
expand on the plaintiffs’ separate arguments in this Order because the plaintiffs contend
that a condition can constitute a public nuisance even if the conduct that causes the
condition is lawful. Nevertheless, we set forth the relevant statutory framework in the
event that the Supreme Court of Appeals determines that the legality of the defendants’
(Continued)
7
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When Congress passed the CSA, it acknowledged that many controlled substances
“have a useful and legitimate medical purpose and are necessary to maintain the health and
JHQHUDOZHOIDUHRIWKH$PHULFDQSHRSOH´86& &RQJUHVVDOVRUHFRJQL]HG,
however, the potential for abuse of such substances and the “need to prevent the diversion
of drugs from legitimate to illicit channels.” Gonzales v. Raich86 see
also 86& 7KXV&RQJUHVVFUHDWHGLQWKH&6$D³FORVHG regulatory system”
in which only entities registered with the DEA may manufacture, distribute, or dispense
controlled substances. Raich86DW see 21 U.S.C. §§ 822, 823.
A controlled substance is placed in a schedule based on the drug’s potential for
being abused. 21 U.S.C. § 812; John Doe, Inc. v. DEA)G '&&LU
As relevant here, Schedule II substances include oxycodone, hydrocodone, and other
opioids that have both a currently accepted medical use and a “high potential for abuse”
that may lead to “severe psychological or physical dependence.” 21 U.S.C. § 812(b)(2);
&)5
Within the supply chain for controlled substances, DEA-registered entities include
manufacturers, distributors, and pharmacies, which dispense controlled substances based
actions affects the availability of a public nuisance remedy. Cf. Duff v. Morgantown
Energy Assocs.6(G :9D H[SODLQLQJWKDWWKH6XSUHPH&RXUWRI
Appeals has “consistently reaffirmed” that even a “business lawful in itself” may constitute
a public nuisance if “a particular use of real property” is unreasonable in relation to the
particular locality involved).
The United States Attorney General delegated many of its authorities under the
CSA to the DEA Administrator. See 86& D &)5 E
8
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 9 of 20
on prescriptions written by registered doctors. All registrants, including distributors, must
“provide effective controls and procedures to guard against . . . diversion of controlled
substances.” 21 C.F.R. § D $UHJLVWUDQWPXVW³GHVLJQDQGRSHUDWHDV\VWHPWR
disclose to the registrant suspicious orders of controlled substances,” and the registrant
“shall inform” the DEA of suspicious orders it discovers. 7 &)5 E see
Huntington ) 6XSS G DW ILQGLQJ WKDW HDFK GHIHQGDQW LQ WKH SUHVHQW FDVH
maintained a suspicious order monitoring system). The regulations categorize as
“suspicious” “orders of unusual size, orders deviating substantially from a normal pattern,
and orderVRIXQXVXDOIUHTXHQF\´&)5 E 8
Despite the controls set forth in the CSA, the opioid epidemic has led to “an
extraordinary public health crisis that started at least two decades ago and has accelerated
over the past decade.” Huntington )6XSSGDW 7KH SODLQWLIIVWKH&LW\RI
When determining whether to register a distributor applicant, the DEA considers
public interest factors such as the applicant’s maintenance of effective controls against
diversion, compliance with applicable state and local laws, prior conviction record, past
experience in the distribution of controlled substances, and other factors that may be
relevant to public health and safety. 21 U.S.C. § 823(b).
7
Congress codified the suspicious order reporting requirement in the Substance
Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and
&RPPXQLWLHV 6833257 $FW3XE/1R- – 6WDW
2FW codified at 21 U.S.C. § 832.
8
Morris & Dickson Co., LLC)HG5HJ- '($0D\
(outlining other “red flags”); Masters Pharm., Inc. v. DEA)G '&&LU
KROGLQJWKDWDGLVWULEXWRUPXVWHLWKHUGHFOLQHWRVKLSRUFRQGXFWGXHGLOLJHQFHEHIRUH
shipping a suspicious order (citing Southwood Pharm., Inc.)HG5HJ
'($-XO\
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 10 of 20
Huntington and Cabell County, West Virginia, have a combined population of about
SHRSOHDQGKDYHEHHQ³DPRQJWKH:HVW9LUJLQLDFRPPXQLWLHVKDUGHVWKLWE\WKH
opioid epidemic.” Id. DW – 1HLJKERUKRRGV WKURXJKRXW +XQWLQJWRQ DQG &DEHOO
County have experienced increased crime rates and decreasing property values. Id. DW
Hundreds of pregnant women in Huntington and Cabell County have been admitted for
WUHDWPHQWRIRSLRLGXVHGLVRUGHUDQGDWWLPHVXSWRSHUFHQWRIEDELHVERUQDW&DEHOOand
Huntington Hospital have suffered from neonatal abstinence syndrome. Id. DW7KH
number of children placed in foster care has doubled. Id. Infectious disease rates have
sharply increased. Id. DW–3HRSOHZKRLQMHFWGUXJVUHSUHVHQWHG SHUFHQWRIQHZ
+,9FDVHVLQ DQGFDVHVRI+HSDWLWLV%DQG&LQ&DEHOO&RXQW\KDYHIDUH[FHHGHG
national averages. Id.
$V RI PRUH WKDQ SHUFHQW RI WKH SRSXODWLRQ RI +XQWLQJWRQ DQG &DEHOO
County was or had been addicted to opioids. Id. DW%HWZHHQDQG
individuals died from drug overdoses in Cabell County. Id. 2IWKRVHLQGLYLGXDOV
died from opioid-related overdoses. Id. %HWZHHQDQGWKHIDWDOGUXJRYHUGRVH
UDWHLQ&DEHOO&RXQW\LQFUHDVHGIURPWR LQGLYLGXDOVSHUSHRSOHId.
$QG DW WKH WLPH RI WKH EHQFK WULDO EHIRUH WKH GLVWULFW FRXUW SUHVFULSWLRQ Rpioids
“remain[ed] . . . an ongoing and significant cause of drug overdose deaths in Cabell and
Huntington.” Id. DW:LWKWKLVEDFNJURXQGLQPLQGZHWXUQWRWKHWKUHVKROGTXHVWLRQ
Neonatal abstinence syndrome (NAS) occurs in newborns “exposed in utero to
GUXJVWDNHQE\WKHPRWKHU´'RUODQG¶V,OOXVWUDWHG0HGLFDO'LFWLRQDU\ GHG
Newborns with NAS show signs of substance withdrawal such as tremors, sweating,
yawning, poor feeding, and sleep disturbance. Id.
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 11 of 20
before us, namely, whether conditions caused by the distribution of a controlled substance
can constitute a public nuisance under West Virginia common law.
II.
Under West Virginia common law, a public nuisance is “an act or condition that
unlawfully operates to hurt or inconvenience an indefinite number of persons.” State ex
rel. Smith v. Kermit Lumber & Pressure Treating Co.6(G :9D
(citation omitted); Duff v. Morgantown Energy Assocs.6(GQ :9D
see also 5HVWDWHPHQW 6HFRQG RI7RUWV% ³$SXEOLFQXLVDQFHLVDQ
unreasonable interference with a right common to the general public.”). This includes
“anything which interferes with the rights of a citizen, either in person, property, the
enjoyment of his property, or his comfort.” Sharon Steel Corp. v. City of Fairmont
6(G : 9D ³$V VXJJHVWHG E\ WKLV EURDG GHILQLWLRQ QXLVDQFH LV D
flexible area of the law that is adaptable to a wide variety of factual situations.” Id.
The parties dispute whether West Virginia’s common law of public nuisance covers
the defendants’ distribution of opioids. Initially, the plaintiffs argue that the “nuisance” at
issue is the “harm to public health and other resources” allegedly caused by the defendants’
distribution of opioids. The plaintiffs contend that, like courts in many other states, West
Virginia trial courts have “repeatedly allowed government entities to bring public nuisance
When exercising diversity jurisdiction, “a federal court must apply the law of the
forum state as it is interpreted by the state’s highest court.” Moore v. Equitrans, L.P., 27
)WK WK&LU FLWDWLRQDQGTXRWDWLRQPDUNVRPLWWHG
11
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 12 of 20
claims concerning opioids.” Moreover, the plaintiffs assert that the Supreme Court of
Appeals has applied the common law of public nuisance to “commodities,” “the
manufacture and distribution of products,” and “otherwise-lawful business activities . . .
when conducted in a manner that harms the public.”
The plaintiffs also emphasize that the Supreme Court of Appeals has not adopted
the Restatement (Third) of Torts, which states that “the common law of public nuisance is
an inapt vehicle for addressing” harms related to products. Restatement (Third) of Torts:
/LDE IRU (FRQ +DUP $GGLWLRQDOO\ WKH SODLQWLIIV FRQWHQG WKDW HYHQ LI WKH
common law definition of public nuisance covers only conduct that interferes with public
property or “resources,” the present case “involves clear interference with public
resources” in the plaintiffs’ communities. Finally, the plaintiffs argue that out-of-state
decisions such as State ex rel. Hunter v. Johnson & Johnson 3G 2NOD ,
do not affect the viability of a public nuisance claim under West Virginia common law.
The distributors respond that the Supreme Court of Appeals has applied the common
law of public nuisance only in the context of conduct that interferes with public property
such as highways, public grounds, harbors and landings, or shared resources such as clean
air and water. The distributors also reject the plaintiffs’ interpretation of Supreme Court
of Appeals precedent, contending that the cases relied on by the plaintiffs did not involve
the distribution of products but, rather, involved the use of property to pollute public
resources with hazardous waste or the use of property in a way that created a “constant
danger” to the public. The defendants also observe that the West Virginia trial court
decisions permitting public nuisance claims to proceed beyond the motion to dismiss stage
12
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 13 of 20
are not precedential authority affecting the present case and suggest that the Oklahoma
Supreme Court’s decision in Hunter should guide the interpretation of the common law of
public nuisance in West Virginia. See Hunter, 3G
Moreover, the defendants contest the plaintiffs’ characterization of the alleged
injury, arguing that harm to an individual results in “at most, a violation of the private right
not to be personally injured.” Application of the common law of public nuisance to harms
caused by the distribution of opioids, they contend, would “mean that every seller of a
product that arguably affects public health . . . could be liable for public nuisance.” The
defendants urge adoption of the Restatement (Third) of Torts as applied to the plaintiffs’
claims here, arguing that mass harms caused by dangerous products “are better addressed
through the law of products liability.” 11
III.
The Supreme Court of Appeals has not determined whether the common law of
public nuisance may apply to conditions caused by distribution of a potentially dangerous
11
Several legal scholars respond to these points in an amicus brief. Initially, amici
contend that the “floodgate concerns” of the defendants and the district court are
“unwarranted.” Because the common law of public nuisance “retains many of the
traditional limits of tort liability,” liability for creating a public nuisance is constrained by
the requirements that the alleged nuisance be “unreasonable” and interfere with a “public
right.” Amici also reject the contention that public nuisance claims duplicate or serve an
“an end run around” for products liability claims. Amici argue that while product liability
claims focus on “harms specifically borne by discrete individuals,” “public nuisance claims
serve a different function, focusing on ‘harms to the public,’ including public health, social
welfare, and security.” Similarly, amici explain that public nuisance claims address
conditions that “unreasonably interfere with the rights of people who are not themselves
harmed by consumption of the product.”
13
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 14 of 20
product. Indeed, public nuisance cases in West Virginia traditionally have addressed
hazards or inconveniences affecting property or resources. See Sharon Steel Corp.
6(GDW FROOHFWLQJFDVHVIURPWR see also Kermit6(GDW
(public nuisance claim against lumber company that failed to eliminate hazardous waste
resulting from its lumber treatment process). Nonetheless, we do not view as dispositive
the fact that the Supreme Court of Appeals has not yet applied principles of public nuisance
to the distribution of a product. And we hesitate to infer such limits on West Virginia’s
common law of public nuisance in light of the broad language used by the Supreme Court
of Appeals in describing public nuisance claims, see Sharon Steel, 6(GDWDQG
in light of decisions by West Virginia trial courts holding that common law claims of public
nuisance are cognizable against distributors of opioids.
For example, in State ex rel. Morrisey v. AmerisourceBergen Drug Corp., a West
Virginia circuit court held that West Virginia had “sufficiently assert[ed]” a claim for
public nuisance by “sufficiently alleg[ing that] the safety and health and morals of the
people of West Virginia ha[d] been compromised due to Defendants’ alleged wrongful
influx of addictive, controlled substances into West Virginia, thereby causing substantial
injury to West Virginia citizens and taxpayers.” No. 12-C-:/DW
: 9D &LU &W 'HF writ denied 1R - : 9D -DQ
Similarly, in Brooke County Commission v. Purdue Pharma L.P., a circuit court held that
the common law of public nuisance is “not limited to property disputes,” and that the
distributor defendants had “interfered with a public right, including the public health.” No.
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 15 of 20
17-C-:/ DW :9D&LU&W'HF writ denied1R -
:9D-XQH 12
The West Virginia Mass Litigation Panel (MLP) 13 also has concluded in multiple
instances that the distribution of opioids can form the basis of a public nuisance claim under
West Virginia common law. When considering a motion to dismiss filed by the same
distributors in this case, the MLP denied the distributors’ motion and “adopt[ed] and
incorporate[d] by reference” the findings of fact and conclusions of law from Brooke
County. Order Denying the Distributor Defendants’ Motion to Dismiss Plaintiffs’
Complaint, &LYLO$FWLRQ1R -C- DW :9D0/32FW available at
KWWSV ZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW-2UGHU'HQ\LQJ'LVWULEXWRU
DefendantsMTD.pdf [https://perma.cc/2CHF-8CEK]. Moreover, after the district court
issued its decision in the present case, the MLP stated that the district court’s “placement
of an artificial external constraint on the common law cause of action for public nuisance
is inconsistent with the Supreme Court of Appeals’ longstanding recognition that a public
nuisance is any act or condition that ‘operates to hurt or inconvenience an indefinite
12
In both Brooke County and Morrisey, the Supreme Court of Appeals refused the
defendants’ petitions for a writ of prohibition following the trial courts’ denials of their
motions to dismiss. See : 9D &RGH -1-1; Brooke Cnty. :/
Morrisey:/
13
The MLP consists of seven active or senior status circuit court judges appointed
by the Chief Justice, with the approval of the Supreme Court of Appeals. Mass Litigation
Panel, Overview, available at https://www.courtswv.gov/lower-courts/mass-litigation-
SDQHO >KWWSV SHUPDFF3%7-.46@ $V RI West Virginia cities, counties,
hospitals, and the State had brought more than eighty lawsuits against manufacturers and
distributors of opioids. See State ex rel. AmerisourceBergen Drug Corp. v. Moats
6(G :9D
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 16 of 20
number of persons,’ and that ‘nuisance is a flexible area of the law that is adaptable to a
wide variety of factual situations.’” Findings of Fact and Conclusions of Law on Order
Denying Pharmacy Defendants’ Motions to Dismiss Complaints and Amended Motions,
Civil Action No. 21-C- -PHARM DW : 9D 0/3 $XJ FLWDWLRQV
omitted), available at KWWSV ZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW--3-
22FOF-&2/DQG2UGHU'HQ\LQJ3KDUPDF\07'VSGI >KWWSV SHUPDFF<1-:@ see
also Findings of Fact and Conclusions of Law and Order Denying Defendants’ Motion for
Summary Judgment Re: “Factual Issue #2”, Civil Action No. 21-C- 'LVWULEXWRU, at
1- : 9D 0/3 -XO\ KROGLQJ WKDW ³:HVW 9LUJLQLD SXEOLF QXLVDQFH ODZ
encompasses plaintiffs’ opioid claims” against the distributor defendants), available at
KWWSV ZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW--1-22OrderDenyingFact
ualIssue2.pdf [https://perma.cc/PJ3Y-65@ Amended Order Regarding Rulings Issued
During March 25, 2022, Pretrial Conference, Civil Action No. 21-C- 0)5 DW :
9D 0/3 0D\ GHFOLQLQJ WR IROORZ WKH 2NODKRPD 6XSUHPH &RXUW¶V UXOLQJ LQ
Hunter KWWSV ZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW--23-22Amended
PretrialRulingsOrder21-C- 0)5SGI>KWWSV SHUPDFF1.-LXPV].
Finally, we do not think that the authorities cited by the defendants, namely, the
Oklahoma Supreme Court’s decision in Hunter 3G DQGWKH5HVWDWHPHQW 7KLUG
Cf. also Lemongello v. Will Co.1R&,9$-C- :/DW
:9D&LU&W-XQH ³7KLV&RXUWILQGVWKDW:HVW9LUJLQLDODZGRHVQRWOLPLW
claims of public nuisance to those dealing with real property. Further, although the
Defendants argued the necessity of an unlawful act to sustain nuisance, this Court finds the
same is not necessary to create a public nuisance.”).
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 17 of 20
of Torts, control the outcome of this case. With regard to Hunter 3G GHFLVLRQV
from other courts of last resort are “entitled to great respect” but are “not of controlling
force or effect or binding in authority” upon the Supreme Court of Appeals. State v. Blatt,
6(G :9D TXRWLQJBurless v. W. Va. Hosps., Inc.6(G
Q :9D
With regard to the Restatement (Third) of Torts, we observe that the Supreme Court
of Appeals has not issued a decision directly addressing the Third Restatement’s position
on this issue. Cf. Duff, 6(G DW UHO\LQJ RQ 5HVWDWHPHQW 6HFRQG RI 7RUWV
Under “Liability for Economic Harm,” section 8 of the Third Restatement addresses the
potential liability of a defendant who creates a public nuisance “that results in economic
loss to the plaintiff,” and provides that suits seeking to recover for public nuisance against
the makers of products “ha[ve] been rejected by most courts . . . because the common law
of public nuisance is an inapt vehicle for addressing the conduct at issue.” Restatement
(Third) of Torts: Liab. for Econ. Harm § 8 cmt. g. But the plaintiffs here have abandoned
their claim for “past damages for economic losses” against the defendants, and section 8
of the Third Restatement instructs readers to refer to the Restatement (Second) of Torts for
a general discussion of public nuisance that extends beyond “liability for economic loss.”
Id. § 8. Moreover, the text of section 8 expressly outlines the limits of its application by
acknowledging that it applies to private suits, rather than to public nuisance claims brought
by public officials. Id.
We thus recognize the potentially limited application of the Third Restatement to
the present case. And, having reviewed principles of the common law of public nuisance
17
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 18 of 20
as reflected in decisions by the Supreme Court of Appeals, as well as in trial court decisions
in West Virginia addressing public nuisance claims against distributors of controlled
substances, we conclude that no controlling appellate decision answers the question
whether conditions caused by the distribution of a controlled substance can constitute a
public nuisance under West Virginia common law and, if so, what the elements are of such
a claim. Cf. also State v. Myers6(G Q :9D H[SODLQLQJ
that unless there is a “dearth” of published opinions on an issue, the Supreme Court of
Appeals ordinarily does not cite unpublished decisions).
IV.
Under the privilege made available by the West Virginia Uniform Certification of
Questions of Law Act, it is hereby ORDERED: (1) That the question stated above be, and
the same hereby is, certified to the Supreme Court of Appeals of West Virginia; (2) that
the Clerk of this Court forward to the Supreme Court of Appeals of West Virginia, under
the official seal of this Court, a copy of this order and, to the extent requested by the
Supreme Court of Appeals of West Virginia, the original or a copy of the record in this
Court; and (3) that any request for all or part of the record be fulfilled by the Clerk of this
Court simply upon notification from the Clerk of the Supreme Court of Appeals.
The names and addresses of counsel of record for the parties are:
The Supreme Court of Appeals has outlined a “reasonableness” test for public
nuisance claims, but the test refers specifically to the use of real property. Duff6(G
DW FLWDWLRQ RPLWWHG 6LPLODUO\ WKH 5HVWDWHPHQW 6HFRQG RI 7RUWV GHVFULEHV
reasonableness and causation in the context of, and by using examples relating to, the use
and enjoyment of land. See, e.g.5HVWDWHPHQW 6HFRQG RI7RUWV(
18
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 19 of 20
Counsel for City of Huntington, West Virginia
Louis M. Bograd
Motley Rice LLC
6XLWH
WK6WUHHW1:
:DVKLQJWRQ'&
Michael J. Quirk, Esq.
Motley Rice LLC
6XLWH
:HVW(YHUJUHHQ$YHQXH
3KLODGHOSKLD3$ -
Counsel for Cabell County Commission
Anthony J. Majestro
Christina L. Smith
Powell & Majestro, PLLC
&DSLWRO6WUHHW6XLWH3-
&KDUOHVWRQ:HVW9LUJLQLD
Counsel for City of Huntington and Cabell County Commission
David Charles Frederick
Kathleen White Hickey
Ariela Miriam Migdal
Lillian Virginia Smith
Kellogg Hansen Todd Figel & Frederick PLLC
6XLWH
06WUHHW1:
:DVKLQJWRQ'&
Counsel for AmerisourceBergen Drug Corporation
Joseph J. Mahady
Robert A. Nicholas
Reed Smith, LLP
6XLWH
3 Logan Square
1717 Arch Street
3KLODGHOSKLD3$
Kim M. Watterson
Reed Smith, LLP
6XLWH
USCA4 Appeal: 22-1822 Doc: 135-2 Filed: 03/18/2024 Pg: 20 of 20
6RXWK*UDQG$YHQXH
/RV$QJHOHV&$
Counsel for Cardinal Health, Incorporated
George A. Borden
Ashley Wall Hardin
Frank Lane Heard, III
Enu Mainigi
Williams & Connolly LLP
0DLQH$YHQXH6:
:DVKLQJWRQ'&
Counsel for McKesson Corporation
Nicole Antoine
Timothy Channing Hester
Stephen F. Petkis
Christian James Pistilli
Paul William Schmidt
Covington & Burling, LLP
1 City Center
WK6WUHHW1:
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This Order is entered by Senior Circuit Judge Keenan, with the concurrence of
Judge King and Judge Benjamin.
QUESTION CERTIFIED
FOR THE COURT:
______________________
$7UXH&RS\1:$0$.$$12:, Barbara Milano Keenan
United States Circuit Judge
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