Federal judges ask West Virginia Supreme Court to weigh in on opioids case

A panel of federal judges wants West Virginia’s Supreme Court to weigh in on Huntington and Cabell County’s continuing fight to hold painkiller distributors accountable for the community’s addiction crisis.

The three-judge panel from the 4th U.S. Circuit Court of Appeals asked the state court to determine if public nuisance claims could be used against the three largest distributors, AmerisourceBergen, Cardinal Health and McKesson.

On Monday, the 4th Circuit panel issued an order asking for the state court’s legal view as the federal judges consider the Huntington-Cabell County case.

In July 2022, Huntington and Cabell County lost a civil case that sought to make the distributors fund efforts to provide more treatment, stem the deaths and rebuild from the disaster. Lawyers for the community are appealing that decision.

During an oral argument in late January , several 4th Circuit judges wondered why no one had asked the state Supreme Court about the matter.

In Monday’s order, Judge Barbara Milano Keenan asked the state court 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 a public nuisance claim?”

The 4th Circuit submitted this as a “certified question,” a move that asks the state court to settle a novel question of law.

Keenan wrote that, in doing so, the state court could essentially decide the appeal.

“A negative answer to this question is outcome determinative in the present appeal,” Keenan wrote. “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.”

In the case, Huntington and Cabell County argue that the drug distributors created a “public nuisance,” when they flooded the community with millions of opioid painkillers. In the lower court decision, U.S. District Judge David A. Faber ruled for a narrow definition of public nuisance suits, saying that the overdose epidemic did not qualify.

Keenan wrote that, in West Virginia, public nuisance cases have traditionally addressed “hazards or inconveniences affecting property or resources” and not “conditions caused by distribution of a potentially dangerous product” such as painkillers.

Federal judges ask West Virginia Supreme Court to weigh in on opioids case appeared first on Mountain State Spotlight , West Virginia's civic newsroom.