US appeals court overturns West Virginia landmark opioid lawsuit
decision
[October 29, 2025]
By JOHN RABY
CHARLESTON, W.Va. (AP) — A federal appeals court on Tuesday overturned a
landmark decision in West Virginia that had rejected attempts by an
opioid-ravaged area to be compensated by U.S. drug distributors for a
influx of prescription pain pills into the region.
The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that
a lower court judge erred when he said West Virginia's public nuisance
law did not apply to the lawsuit involving the distribution of opioids.
“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,” the 4th Circuit wrote. “West Virginia has
long characterized abatement as an equitable remedy.”
The ruling sends the case back to U.S. District Court in Charleston for
“further proceedings consistent with the principles expressed in this
opinion.”
Thousands of state and local governments have sued over the toll of
opioids. The suits relied heavily on claims that the companies created a
public nuisance by failing to monitor where the powerful prescriptions
were ending up. Most of the lawsuits were settled as part of a series of
nationwide deals that could be worth more than $50 billion. But there
wasn’t a decisive trend in the outcomes of those that have gone to
trial.
In July 2022, U.S. District Judge David Faber ruled in favor of three
major U.S. drug distributors who were accused by Cabell County and the
city of Huntington of causing a public health crisis by distributing 81
million pills over eight years in the county. AmerisourceBergen Drug
Co., Cardinal Health Inc. and McKesson Corp. also were accused of
ignoring the signs that Cabell County was being ravaged by addiction.
Faber said West Virginia’s Supreme Court had only applied public
nuisance law in the context of conduct that interferes with public
property or resources. He said to extend the law to cover the marketing
and sale of opioids “is inconsistent with the history and traditional
notions of nuisance.”
Last year the federal appeals court sent a certified question to the
state Supreme Court, which states: “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?”
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 The state justices declined to
answer. That 3-2 opinion in May returned the case to the federal
appears court.
“We hold that West Virginia’s highest court would not exclude as a
matter of law any common law claim for public nuisance caused by the
distribution of a controlled substance,” the 4th Circuit wrote
Tuesday. “Therefore, we necessarily conclude that the district court
erred when it held that a public nuisance claim based on the
distribution of opioids was per se legally insufficient under West
Virginia law.”
During arguments earlier this year before the state Supreme Court
over the certified question, Steve Ruby, an attorney for the
companies, called “radical” the plaintiffs’ arguments to extend the
public nuisance law to opioid manufacturers. If allowed, he said,
that would “create an avalanche of activist litigation.”
The appeals court previously noted that the West Virginia Mass
Litigation Panel, which works to resolve complex cases in state
court, has concluded in several instances that opioid distribution
“can form the basis of a public nuisance claim under West Virginia
common law.”
In his 2022 decision, Faber also said the plaintiffs offered no
evidence that the defendants distributed controlled substances to
any entity that didn’t hold a proper registration from the U.S. Drug
Enforcement Administration or the state Board of Pharmacy. The
defendants also had suspicious monitoring systems in place as
required by the Controlled Substances Act, he said.
But the 4th Circuit Court found Tuesday that the lower court
“misconstrued the distributors’ duties” under the Controlled
Substances Act.
The plaintiffs had sought more than $2.5 billion that would have
gone toward opioid use prevention, treatment and education over 15
years.
In 2021 in Cabell County, an Ohio River county of 93,000 residents,
there were 1,059 emergency responses to suspected overdoses —
significantly higher than each of the previous three years — with at
least 162 deaths.
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