City of Huntington, West Virginia v. Amerisourcebergen Drug Corporation

96 F.4th 642

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 18, 2024
• Docket: 22-1819
• Status: Published

Opinion

USCA4 Appeal: 22-1819 Doc: 137-2 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,

v. USCA4 Appeal: 22-1819 Doc: 137-2 Filed: 03/18/2024 Pg: 2 of 20

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. ------------------------------

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,

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 USCA4 Appeal: 22-1819 Doc: 137-2 Filed: 03/18/2024 Pg: 3 of 20

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 USCA4 Appeal: 22-1819 Doc: 137-2 Filed: 03/18/2024 Pg: 4 of 20

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: 22-1819 Doc: 137-2 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: 22-1819 Doc: 137-2 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: 22-1819 Doc: 137-2 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 USCA4 Appeal: 22-1819 Doc: 137-2 Filed: 03/18/2024 Pg: 8 of 20

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.  Raich86DWsee 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: 22-1819 Doc: 137-2 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)6XSSGDW7KH 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: 22-1819 Doc: 137-2 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–3HRSOHZKRLQMHFWGUXJVUHSUHVHQWHGSHUFHQWRIQHZ

+,9FDVHVLQDQGFDVHVRI+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\LQFUHDVHGIURPWRLQGLYLGXDOVSHUSHRSOHId.

$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: 22-1819 Doc: 137-2 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: 22-1819 Doc: 137-2 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 & Johnson3G 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: 22-1819 Doc: 137-2 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: 22-1819 Doc: 137-2 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: 22-1819 Doc: 137-2 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

KWWSVZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW-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 >KWWSVSHUPDFF3%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: 22-1819 Doc: 137-2 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 KWWSVZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW--3-

22FOF-&2/DQG2UGHU'HQ\LQJ3KDUPDF\07'VSGI >KWWSVSHUPDFF<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

KWWSVZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW--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  KWWSVZZZFRXUWVZYJRYVLWHVGHIDXOWSXEILOHVPQW--23-22Amended

PretrialRulingsOrder21-C-0)5SGI>KWWSVSHUPDFF1.-LXPV].

Finally, we do not think that the authorities cited by the defendants, namely, the

Oklahoma Supreme Court’s decision in Hunter3GDQGWKH5HVWDWHPHQW 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: 22-1819 Doc: 137-2 Filed: 03/18/2024 Pg: 17 of 20

of Torts, control the outcome of this case. With regard to Hunter3GGHFLVLRQV

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: 22-1819 Doc: 137-2 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(GQ :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: 22-1819 Doc: 137-2 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: 22-1819 Doc: 137-2 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: :DVKLQJWRQ'&-

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 &OHUNRIWKH8QLWHG6WDWHV&RXUWRI $SSHDOVIRUWKH)RXUWK&LUFXLW

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