CHARLESTON – West Virginia no longer resides on the annual list of Judicial Hellholes, but the Mountain State was mentioned a few times in this year’s report.
The American Tort Reform Association’s annual report was released December 9, and West Virginia’s “great strides in recent years to shed its former reputation as a Judicial Hellhole” was noted.
But the report also notes 26 bills in the 2025 legislative session that would have resulted in expansion of liability.
“These bills included at least six that would have created an entirely new cause of action, according to West Virginia Citizens Against Lawsuit Abuse,” ATRA says. “These included bills authorizing new lawsuits against schools, state government entities and public officials and financial institutions, among others.”
Also, West Virginia is central to one case listed among Dishonorable Mentions in the report. Dishonorable Mentions generally comprise singularly unsound court decisions, abusive practices or other actions that erode the fairness of a state’s civil justice system and are not otherwise detailed in other sections of the report.
This one is a Fourth Circuit Court of Appeals interpretation of West Virginia’s public nuisance law in Huntington v. AmerisourceBergen.
The Fourth Circuit ruled West Virginia’s public nuisance law could be invoked to impose liability on companies that distribute products, here opioid medications to pharmacies. The tort of public nuisance historically has been reserved for dealing with a variety of local disturbances involving the public’s right to use certain local lands and waterways.
“Specifically, the city (and Cabell County) alleges the opioid epidemic constitutes a public nuisance, even though it does not involve a local land or water disturbance, and that these companies, by ‘over-distribut(ing)’ opioids, caused the opioid epidemic and has to pay the government’s costs to fight the epidemic and treat opioid abuse,” ATRA’s report states. “There is no basis in West Virginia law for this expansive view of public nuisance law. These are product, not public nuisance, claims.”
ATRA says U.S. District Judge David Faber “had it right.”
“After a lengthy bench trial, (Faber) held that the distribution of prescription drugs cannot form the basis of a public nuisance action,” the report states. “The court explained that the transfer of legally prescribed controlled substances for illicit purposes is not the type of activity that is governed by public nuisance law and is already subject to extensive DEA monitoring, regulation, and enforcement.
“Further, any causal chain between distributors of these lawful medications and the misuse of those medications by individuals is broken by many independent actors involved after distribution.”
The Fourth Circuit initially certified these questions to the West Virginia Supreme Court of Appeals, which decided not to answer them. The Fourth Circuit then used this lack of clarity as its rationale for finding that, because the state Supreme Court had not expressly narrowed the law’s scope, the state’s law was open to broader application: the “State Supreme Court has not identified any specific product-based harm that should be excluded from qualifying as a public nuisance.”
Contrary to West Virginia law and every other state supreme court to hear similarly expansive public nuisance theories, the Fourth Circuit then held that public nuisance law could apply “when the evidence establishes that distribution of (a) product unreasonably ‘operates to hurt or inconvenience an indefinite number of persons.’”
ATRA says this decision marks a significant departure from traditional limits on public nuisance law, opening the door to unprincipled liability — at least in West Virginia.
“In this way, it is a dangerous step in the trial bar’s longstanding effort to transform public nuisance into a ‘Super Tort’ capable of shifting costs of societal issues to businesses merely because they made, sold, or distributed products that others used or misused to cause harm,” the report states. “In addition, the Fourth Circuit’s willingness — or eagerness — to move West Virginia tort law into an area in which it’s never been before, is particularly concerning given the limited role federal courts are supposed to have when applying state tort law.
“Under longstanding U.S. Supreme Court precedence, federal courts must follow state tort law. If state law presents an open question requiring a federal court to ‘predict’ how the state supreme court would rule, federal courts typically exercise restraint and apply firmly established state law, rather than accept an invitation to adopt a novel theory.”
But ATRA says the Fourth Circuit was reckless.
“Here, although the Fourth Circuit appropriately certified these questions to the West Virginia Supreme Court of Appeals, after that court declined review, the Fourth Circuit should not have used that as an excuse to throw caution to the wind and apply the state’s public nuisance law in a way no court had ever done,” ATRA’s report states. “The only solace is that this ruling is not binding on West Virginia courts and does not apply to any other state public nuisance law.”
The opioid case has its first hearing back in Faber’s courtroom next week.
