WV Supreme Court declines to answer federal court question in Cabell, Huntington opioid appeals case

As Huntington and Cabell County are attempting to appeal a 2022 federal ruling that found West Virginia’s public nuisance laws insufficient grounds for their lawsuit against three opioid distributors, the state Supreme Court on Monday declined to answer a certified question from the federal appeals court on a crucial aspect of the case.

Last March, the federal Fourth Circuit Court of Appeals asked the West Virginia Supreme Court of Appeals to decide whether state law recognizes conditions caused by prescription drug sales to be a public nuisance, and if so, what the elements are of such claims.

In an opinion issued Monday written by Justice C. Haley Bunn, the state Supreme Court declined to answer that question due to “disputed factual findings and related legal conclusions resting on those factual findings.” Justice Beth Walker issued a separate opinion concurring with Bunn’s opinion and the court’s decision to remain quiet on the question.

A dissenting opinion was written by Chief Justice Bill Wooton and supported by Kanawha County Circuit Court Judge Tera Salango, who is sitting in on temporary assignment. Justices Tim Armstead and Charlie Trump both recused themselves from the case.

In her opinion, Bunn wrote that, since Huntington and Cabell County — as the plaintiffs in the case — were disputing “unsettled facts” used in U.S. District Court Judge David Faber’s 2022 decision in favor of AmerisourceBergen, Cardinal Health and McKesson, the state court can’t fairly answer the legal question posed by the Fourth Circuit. 

“We would have to assume that some or all of the district court’s disputed findings of fact and related legal conclusions were incorrect to answer any kind of question regarding public nuisance, because if the district court’s challenged findings and related conclusions are correct, this Court need not reach the legal question of whether a public nuisance cause of action exists in these circumstances,” Bunn’s opinion reads.

In their dissenting opinion, however, Wooton argued that the state court could certainly offer an answer to the public nuisance question without taking on all the details and potential outcomes of the federal appeals case.

“In short, nothing in our law compels the conclusion that a certified question must be dispositive of an entire case, which appears to be the majority’s underlying rationale,” Wooton wrote. “Our mandate is to resolve an issue, which is exactly what the Fourth Circuit has asked us to do.”

Wooton called the majority’s reasoning in refusing to issue an answer to the questions “wholly unpersuasive.” 

“[Huntington and Cabell County] are entitled to an answer to the question posed by the Fourth Circuit, and the [drug companies’] argument to the contrary can fairly be deemed cursory at best; it consists of one brief paragraph and a footnote,” Wooton wrote. “Unfortunately, the majority has come to the rescue by making the argument the [drug companies] could have made, but did not.”

Wooton pointed to weaknesses in case law from decisions in other states that were used by the majority to explain its rationale in denying answering the question, saying such cases lacked West Virginia-specific context. He also emphasized how critical the court’s decision could be, and pointed to other similar circumstances where the West Virginia Supreme Court of Appeals opted to answer a certified question from a higher court when facts for the case were under dispute. 

“In declining to utilize [state law] in order to answer the certified question, this Court could well be viewed as having once again ducked an issue which it has ducked on three previous occasions,” Wooton wrote.

Those “three previous occasions” he cites were cases also centered on opioid distributors where the state supreme court opted not to issue opinions.

“We may never have a better opportunity than the one we are squandering today,” Wooton wrote. “The certified question in this case is one of great importance to our State, which has been ravaged by a flood of epic proportions: a flood of opioids which has, over the course of decades, overtaken the capacity of State, county, and municipal institutions and programs to remediate the damage caused in its wake.”

Huntington and Cabell County alone, he continued, lack the resources necessary to recover from the ongoing drug and overdose epidemic.

But the localities, Wooton wrote, “deserve an answer to their overarching question: is there a light at the end of this tunnel?”

Huntington and Cabell County opted out of a statewide lawsuit against opioid distributors in order to bring their own legal action in hopes of earning more money for remediation efforts. The arguments made in their case against the distributors, however, are nearly identical to those that were made on behalf of the state in its litigation. The state’s case proved successful. 

Since the localities opted out of the statewide case against distributors, they are ineligible to receive most of the funds directly distributed to counties and municipalities from that settlement. The localities can, however, apply for and receive grant funds from the West Virginia First Foundation, the private nonprofit organization responsible for allocating the state’s share of the money.

The localities have argued that the excessive distribution of opioids in their communities caused significant harm, spurring what is now a decades-long and still ongoing drug epidemic. According to the state Office of Drug Control Policy, at least 876 individuals in Cabell County died from overdoses involving opioids between 2015 and 2021, the highest fatal overdose rate for opioids in the state over that time.

Distributors named in the ongoing litigation allege, as they have in opioid cases across the country, that public nuisance laws do not apply when legal products are being distributed.

Cabell County and Huntington are seeking about $2.5 billion from the companies to support recovery efforts in their communities and implement a plan to decrease the impact of the crisis.

Without an answer from the state Supreme Court, the Fourth Circuit will likely have to interpret West Virginia’s laws on its own as the localities’ request for an appeal moves forward.