In a closely watched legal battle over the opioid epidemic, the West Virginia Supreme Court declined to answer a critical question: Can the distribution of opioids legally be considered a public nuisance under state law?
On Monday, the court issued a 3-2 decision refusing to respond to a certified question from the 4th U.S. Circuit Court of Appeals. The question came as part of an appeal in a landmark case against three major drug distributors — AmerisourceBergen, Cardinal Health, and McKesson.
The case was brought by Cabell County and the city of Huntington, which together accused the companies of fueling a public health crisis by flooding their region with 81 million opioid pills over eight years. The plaintiffs argued that this mass distribution of opioids constituted a public nuisance and demanded over $2.5 billion in damages to support prevention and treatment efforts.
In 2022, U.S. District Judge David Faber ruled in favor of the distributors, stating that West Virginia’s public nuisance laws had traditionally only applied to misuse of public property or resources — not the marketing or sale of legal substances. He concluded that stretching those laws to cover opioid sales would be inconsistent with how nuisance law has historically been interpreted.
When the 4th Circuit reviewed the case, it paused proceedings to ask the West Virginia Supreme Court to clarify state law. If the state’s highest court had agreed that opioid distribution could legally qualify as a public nuisance, the appeal would have moved forward.
If it had disagreed, the case would have ended there. But by refusing to answer at all, the Supreme Court left the door open for the federal court to proceed without state guidance.
Justice Haley Bunn wrote the majority opinion. A separate opinion was offered by retiring Justice Beth Walker. Chief Justice Bill Wooton dissented, joined by Judge Tera Salango, one of two circuit judges temporarily assigned to the case due to recusals from other justices.
Attorney Paul Farrell Jr., who represents the plaintiffs, said he was disappointed by the court’s refusal to clarify the law. “The fight isn’t over,” Farrell said. “There’s still a long way to go. We continue on our path to seek justice.”
A spokesperson for Cardinal Health declined to comment on the ruling. AmerisourceBergen and McKesson did not respond to requests for comment.
Earlier this year, Steve Ruby, an attorney representing the companies, argued that calling opioid distribution a public nuisance would open the floodgates to “an avalanche of activist litigation.”
This case is one of many across the country in which local and state governments have sought to hold opioid distributors accountable. While most lawsuits have ended in massive settlements — totaling more than $50 billion — trials that have gone forward have produced mixed results.
In Cabell County alone, the devastating toll of the opioid crisis is evident. In 2021, there were 1,059 emergency overdose responses — a sharp increase from previous years — and at least 162 deaths.
While federal courts now continue to navigate the appeal, the uncertainty surrounding how West Virginia defines public nuisance will remain a key issue. The 4th Circuit Court must now proceed without a definitive answer from the state’s highest legal authority, weighing both legal precedent and the ongoing human cost of the opioid epidemic.
