CHARLESTON, W.Va. (AP) — West Virginia's Supreme Court on Monday declined to answer a federal court's question in an appeal in a landmark lawsuit over whether the distribution of opioids can cause a public nuisance.
The 3-2 opinion returns the case to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.
It's been nearly three years since a federal judge in Charleston 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.
U.S. District Judge David Faber in Charleston 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 appeals court in Richmond, Virginia, 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?”
Had the state justices ruled that opioids distribution can cause a public nuisance, the case would have returned to the 4th Circuit anyway. Had the West Virginia court found that opioids can’t cause a public nuisance, the appeal would have ended, the 4th Circuit has said.
Instead, a majority of the West Virginia justices refused to get involved.
Justice Haley Bunn delivered the opinion of the West Virginia Supreme Court. Justice Beth Walker, who is retiring next month, issued a separate opinion. Chief Justice Bill Wooton was joined in a dissenting opinion by Circuit Judge Tera Salango. Salango and Circuit Judge Andrew Dimlich heard the case on temporary assignment after two other justices disqualified themselves.
Paul Farrell Jr., an attorney representing the plaintiffs, said Monday he was disappointed that the justices declined to answer the legal question.
“The fight isn’t over," Farrell said. "There’s still a long way to go. We continue on our path to seek justice.”
Farrell said the appeals court still must address a combination of factual and legal issues.
A Cardinal Health spokesperson declined to comment on Monday’s ruling. Emails seeking comment from AmerisourceBergen and McKesson weren’t immediately returned.
During arguments earlier this year before the state Supreme Court over the certified question, Steve Ruby, an attorney for the companies, called the plaintiffs’ arguments to grant the public nuisance “radical” and that, if granted, it would “create an avalanche of activist litigation.”
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.
The appeals court had 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.
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.
The plaintiffs had sought more than $2.5 billion that would have gone toward opioid use prevention, treatment and education over 15 years.
FILE - Signs are displayed at a tent during a health event on June 26, 2021, in Charleston, W.Va. (AP Photo/John Raby, File)
Los Angeles Chargers (11-5) at Denver (13-3)
Sunday, 4:25 EST, CBS.
BetMGM NFL Odds: Broncos by 12 1/2.
Against the spread: Chargers 8-7-1; Broncos 6-9-1.
Series record: Broncos lead 72-58-1.
Last meeting: Chargers beat Broncos 23-20 on Sept. 21, 2025, in Inglewood, California.
Last week: Chargers lost to Texans 20-16; Broncos beat Chiefs 20-13.
Chargers offense: overall (12), rush (12), pass (15), scoring (T-16).
Chargers defense: overall (4), rush (9), pass (6), scoring (7).
Broncos offense: overall (9), rush (19), pass (9), scoring (14).
Broncos defense: overall (3), rush (2), pass (8), scoring (4).
Turnover differential: Chargers plus-4 ; Broncos minus-5.
QB Trey Lance is making his sixth career start and first for the Chargers. He's appeared in three games this season, completing 7 of 13 passes for 90 yards with no touchdowns, no interceptions and two sacks.
WR Courtland Sutton surpassed 1,000 yards last week, but he dropped a touchdown pass and caught just four of the 10 passes Bo Nix threw his way. Sutton has 73 receptions for 1,012 yards and seven TDs this season, a similar output to last year when he caught 81 passes for 1,081 yards and eight TDs.
The Chargers offensive line and backup QB versus Denver's dominant pass rush. The Broncos have had a franchise-record and NFL-best 64 sacks so far and are within striking distance of the NFL record of 72 set by the 1984 Chicago Bears, who had a dozen in their season finale that year.
Chargers: Coach Jim Harbaugh said he's sitting QB Justin Herbert (left hand) for the finale along with several other starters. Rookie RB Omarion Hampton (ankle) missed practice time this week as did CB Nikko Reed (hamstring) and OL Jamaree Salyer (hamstring). Harbaugh said he doesn't expect Salyer to play Sunday.
Broncos: LB Dre Greenlaw has been dealing with a hamstring injury and won't play in the finale. WR Pat Bryant (concussion), TE Nate Adkins (knee) and DL John Franklin-Meyers (hip) were limited in practice this week.
The Chargers have won all three games against Denver and Sean Payton with Jim Harbaugh as head coach. All three have been one-score games.
The Chargers clinched a playoff berth for the second straight season, the first time that's happened since they reached the postseason four consecutive times from 2006-09. ... The Bolts are coming off a 20-16 loss to Houston in which they were 2 of 5 in the red zone while the defense allowed a pair of rare long touchdown passes to open the game. K Cameron Dicker missed a field goal from inside 40 yards for the first time in his career and pulled an extra point wide for the first time this season. ... The Chargers are the only team that's unbeaten (5-0) in the AFC West this season. ... RB Omarion Hampton has a touchdown in three of his past four games. ... WR Quentin Johnston is coming off a 98-yard performance in Week 17. ... WR Keenan Allen had seven catches for 65 yards and a touchdown against Denver in Week 3. ... The Broncos were the first team to clinch a playoff spot and can earn the AFC's No. 1 overall seed with a win Sunday. The Broncos won the AFC West for the first time since 2015, ending the Kansas City Chiefs' nine-year reign atop the division. ... Broncos QB Bo Nix is tied for the second-most victories over the first two seasons at his position with 23. With a win Sunday, he'll tie Russell Wilson's NFL record of 24 wins in his first two seasons. ... Nix needs one TD pass to become the fourth QB in NFL history with at least 25 in each of his first two seasons. ... Nix is the third player ever, joining Herbert and Peyton Manning, with 3,500-plus passing yards and 25 or more TD passes in each of his first two NFL seasons. ... RB RJ Harvey leads rookies with a dozen TDs this season. He's scored a TD in five consecutive games. ... LB Nik Bonitto had two sacks in Week 3 against the Chargers.
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Los Angeles Chargers tight end Oronde Gadsden (86) celebrates his touchdown during the second half of an NFL football game against the Houston Texans Saturday, Dec. 27, 2025, in Inglewood, Calif. (AP Photo/Kevork Djansezian)
Denver Broncos linebacker Alex Singleton reacts during the second half of an NFL football game against the Kansas City Chiefs Thursday, Dec. 25, 2025, in Kansas City. (AP Photo/Charlie Riedel)
Los Angeles Chargers running back Omarion Hampton (8) celebrates his touchdown with quarterback Justin Herbert (10) during the second half of an NFL football game against the Houston Texans Saturday, Dec. 27, 2025, in Inglewood, Calif. (AP Photo/Kevork Djansezian)
