Charleston, W.Va. — In a move that leaves the future uncertain for a important legal battle, West Virginia’s Supreme Court opted not to answer a pivotal question posed by a federal court regarding the opioid crisis.The central issue revolves around whether the distribution of opioids can be legally defined as a public nuisance under state law.

The Court’s Decision and Its Implications

The 3-2 decision effectively returns the case to the 4th U.S.Circuit Court of Appeals,located in richmond,Virginia.This advancement follows nearly three years since a federal judge in Charleston initially ruled in favor of major U.S. drug distributors. These distributors had been accused by Cabell County and the city of Huntington of fueling a public health crisis through the distribution of 81 million opioid pills over an eight-year period.

Background of the Lawsuit

AmerisourceBergen Drug Co., Cardinal Health Inc., and McKesson Corp.faced accusations of disregarding clear indicators that Cabell County was suffering immensely from addiction. U.S.District judge Faber, presiding in Charleston, articulated that West Virginia’s Supreme Court had historically applied public nuisance law only to conduct impacting public property or resources. He argued that extending this law to encompass the marketing and sale of opioids would be inconsistent with the history and customary notions of nuisance.

The Certified Question

Last year, the appeals court in Richmond, Virginia, sent a certified question to the state Supreme Court, seeking clarity on state law.The question specifically asked: 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?

potential Outcomes and the Court’s Stance

The 4th Circuit Court of appeals clarified the potential outcomes, stating that if the state justices had persistent that opioid distribution could constitute a public nuisance, the case would have returned to the federal court. Conversely, if the West Virginia court had ruled that opioids could not cause a public nuisance, the appeal would have concluded.Rather, a majority of the West Virginia justices chose not to intervene.

The Justices’ Opinions

Justice Haley Bunn delivered the opinion of the West Virginia Supreme Court. Justice Beth Walker, nearing her retirement, issued a separate opinion. Chief Justice Bill Wooton,along with Circuit judge Tera Salango,dissented. Salango and Circuit Judge Andrew Dimlich served on temporary assignment due to the disqualification of two other justices.

Reactions to the Decision

Paul Farrell jr., representing the plaintiffs, expressed his disappointment with the justices’ decision not to answer the legal question. The fight isn’t over, Farrell stated. There’s still a long way to go. We continue on our path to seek justice. He emphasized that the appeals court must still address a combination of factual and legal issues.

Defense’s Perspective

A Cardinal Health spokesperson declined to comment on the ruling. As of the report, emails seeking comment from AmerisourceBergen and McKesson had not been returned. During arguments before the state Supreme Court, Steve Ruby, an attorney representing the companies, described the plaintiffs’ arguments as radical and warned that granting the public nuisance claim would create an avalanche of activist litigation.

The Broader Context of Opioid Litigation

Thousands of state and local governments have initiated lawsuits concerning the impact of opioids, often alleging that companies created a public nuisance by failing to adequately monitor the distribution of these powerful prescriptions. Many of these lawsuits have been resolved through nationwide settlements, perhaps totaling over $50 billion.However, trial outcomes have varied substantially.

Previous Findings and Evidence

The appeals court highlighted that the West virginia Mass Litigation Panel had previously concluded that opioid distribution can form the basis of a public nuisance claim under West Virginia common law. Judge Faber, in his 2022 decision, also noted that the plaintiffs had not provided evidence that the defendants distributed controlled substances to entities lacking proper registration from the U.S. Drug Enforcement Administration or the state Board of Pharmacy. He added that the defendants had implemented suspicious monitoring systems as mandated by the Controlled Substances Act.

the Impact on Cabell County

in 2021, Cabell County, with a population of 93,000, experienced 1,059 emergency responses to suspected overdoses, a significant increase compared to the previous three years, with at least 162 fatalities.

The Plaintiffs’ Goals

The plaintiffs had sought over $2.5 billion to fund opioid use prevention, treatment and education initiatives over a 15-year period.