Tort: Public nuisance suit against opioid distributors is resuscitated

Where the district court held that West Virginia common law does not permit a public nuisance claim based on the distribution of prescription drugs, it erred. Under West Virginia law, an unreasonable interference with a right common to the general public resulting from the distribution of opioids may qualify as a public nuisance when the evidence establishes that distribution of this product unreasonably “operates to hurt or inconvenience an indefinite number of persons.”

Background

The Cabell County Commission and the City of Huntington sued three distributors of opioids, alleging they repeatedly shipped opioids to pharmacies in quantities that the distributors allegedly knew or should have known exceeded any legitimate uses for the drugs. The district court held that West Virginia common law does not permit a public nuisance claim based on the distribution of prescription drugs and that, alternatively, plaintiffs nonetheless failed to prove the elements of such a claim.

Public nuisance

The defendants submit that the State Supreme Court has applied the common law of public nuisance only in the context of conduct that interferes with public property. Accordingly, the defendants ask this court to reject as a matter of law a claim of public nuisance for conduct involving the distribution of opioids, contending that such conduct reflects only a “product-based” harm.

The court declines the defendants’ request to restrict the scope of public nuisance under West Virginia law by excluding as a matter of law harm suffered by the general public originating from the distribution of opioids. The state Supreme Court has not identified any particular type of product-based harm that should be excluded from qualifying as a public nuisance. And nothing in that court’s jurisprudence indicates that public nuisance under West Virginia law should be restricted by carving out any product-based harm.

Instead the state Supreme Court repeatedly has used the expansive definition of public nuisance from the Restatement (Second) of Torts § 821B(1). The court thus holds that, under West Virginia law, an unreasonable interference with a right common to the general public resulting from the distribution of opioids may qualify as a public nuisance when the evidence establishes that distribution of this product unreasonably “operates to hurt or inconvenience an indefinite number of persons.”

This conclusion is supported by decisions issued by West Virginia trial courts holding that common law claims of public nuisance are cognizable against distributors of opioids. Additionally, various judges serving on the West Virginia Mass Litigation Panel have ruled that the distribution of opioids can form the basis of a public nuisance claim under West Virginia common law. This view of West Virginia’s common law also does not change after considering the decisions from other state courts cited by the defendants. The district court thus erred when it held that a public nuisance claim based on the distribution of opioids was per se legally insufficient under West Virginia law.

Merits

The district court also committed legal error in construing the scope of the distributors’ obligations under the Controlled Substances Act. The Act directs that distributors develop a system to examine for indicia of diversion the individual orders of controlled substances placed by customer pharmacies. The duty is not limited, as the district court held, to examining whether a pharmacy essentially is serving as an “adjunct[] of the illicit market.”

When the district court found that the distributors substantially complied with their duties under the Act and did not unreasonably interfere with a public right, those findings necessarily were based, at least in part, on the court’s incorrectly narrow perception of what those duties were. Thus, the district court’s finding is vacated and remanded for determination in the first instance under the correct legal standard.

On remand, as part of any proximate cause analysis, the district court should address the documentary record of the distributors’ pattern of threshold limit increases and their impact on the duty to report “suspicious” orders to the DEA in determining whether the local governments proved that the distributors were a proximate cause of the injury alleged.

The court also vacates the court’s conclusion that three “effective intervening causes” rendered the distributors’ acts too remote to be a proximate cause of the alleged harm. On remand, any discussion of remoteness by the district court will need to consider, under the correct legal standard of the distributors’ duties, the interaction of the distributors’ conduct with the conduct of the other actors in the closed regulatory system, as well as the foreseeability of the intervening acts.

Remedy

This court predicts that the state Supreme Court would allow the remedy of abatement to encompass acts to eliminate a public nuisance and would permit a monetary award to fund such abatement efforts. The court further concludes that West Virginia law permits abatement of a public nuisance to include a requirement that a defendant pay money to fund efforts to eliminate the resulting harm to the public.

Vacated and remanded with instructions.

City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation, Case Nos. 22-1819, 22-1822, Oct. 28, 2025. 4th Cir. (Keenan), from SDWVA at Huntington (Faber). David Charles Frederick for Appellant. Paul William Schmidt, Enu Mainigi and Robert A. Nicholas for Appellees. VLW 025-2-398. 49 pp.