CITY OF HUNTINGTON WEST VIRGINIA AND CABELL COUNTY COMMISSION v. AMERISOURCEBERGEN DRUG CORPORATION CARDINAL HEALTH INC AND MCKESSON CORPORATION (2025)

The United States Court of Appeals for the Fourth Circuit certified a question to this Court, asking:

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?

This question emerges from lawsuits filed by the City of Huntington and the Cabell County Commission against drug distributors AmerisourceBergen Drug Corp., Cardinal Health, Inc., and McKesson Corp., relating to the serious opioid epidemic facing Huntington and Cabell County, West Virginia. After a ten-week bench trial, the United States District Court for the Southern District of West Virginia ruled in favor of the defendant drug distributors. The plaintiffs appealed the district court's judgment, and the Fourth Circuit certified the question above. Many of the factual findings made by the district court are disputed by the parties and are currently on appeal to the Fourth Circuit. Because those disputed findings underlie our consideration of the certified question and are essential to addressing the issue before us, we respectfully decline to answer the certified question.¹

I.

FACTUAL AND PROCEDURAL HISTORY

In 2017, the City of Huntington (“Huntington”) and the Cabell County Commission (“Cabell County”) (collectively “the plaintiffs”), each separately sued defendants AmerisourceBergen Drug Corp., Cardinal Health, Inc., and McKesson Corp., opioid distributors (collectively “the defendants”). City of Huntington, W. Va. v. AmerisourceBergen Drug Corp., 96 F.4th 642, 644 (4th Cir. 2024) (“Cert. Order”).² The plaintiffs alleged that defendants “ ‘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.”³ Id. (alteration in original, no citation in original).⁴ Ultimately, the United States Judicial Panel on Multidistrict Litigation (“MDL”) transferred the cases to the MDL court, the United States District Court for the Northern District of Ohio, which in turn directed the parties to “streamline” their claims after designating the lawsuits as bellwether cases.⁵ Id. at 644 n.1. The plaintiffs then “narrowed their claims to a public nuisance suit” against the three distributors. Id. Essentially, the “plaintiffs contended that the defendants’ conduct resulted in public nuisance that was subject to abatement under West Virginia common law.” Id. at 644-45. The MDL court then remanded the case to the Southern District of West Virginia, where the district court consolidated the cases and held a ten-week bench trial. See id. at 644 & 644 n.1.

The district court ruled in favor of the defendant distributors in a 184-page order entitled “Findings of Fact and Conclusions of Law.” See City of Huntington v. AmerisourceBergen Drug Corp., 609 F. Supp. 3d 408 (S.D.W. Va. 2022) (page number from original filing). Relevant to this certified question, the district court concluded that “there is and has been an opioid epidemic” in Huntington and Cabell County, and recited statistics including those regarding overdose deaths and addiction in those locations. Id. at 419-20.

The district court then explained the federal Controlled Substances Act (“CSA”), noting that it “establishes a closed system for drugs classified as controlled substances.” Id. at 421. Within that closed system, the district court stated that

[Drug Enforcement Administration (“DEA”)]- registered manufacturers may sell controlled substances only to DEA-registered distributors and pharmacies; DEA-registered distributors may distribute controlled substances only to DEAregistered dispensers (such as pharmacies and hospitals); and DEA-registered dispensers may dispense controlled substances only pursuant to prescriptions written by DEA-registered prescribers.

Id. The CSA regulations require distributors, like the defendants, to “design and operate a system to disclose to the [distributors] suspicious orders of controlled substances” and to report suspicious orders to the DEA when they discover them. Id. at 422 (quoting 21 C.F.R. § 1301.74(b)). The DEA, via letter to distributors, also recognized “the duty of distributors to maintain effective controls against diversion of controlled substances into other than legitimate medical, scientific, and industrial channels”⁶ and “to report suspicious orders of controlled substances.” Id. at 423-24. The court explained that “[t]he DEA does not and will not tell a distributor whether an order is suspicious but, rather, leaves that decision to the distributor.” Id. at 422-23.

The district court concluded that “Defendants Substantially Complied with Their Duties under the CSA to Design and Operate a [Suspicious Order Monitoring] System and Report Suspicious Orders.” Id. at 425. It further found that the “[p]laintiffs did not prove that defendants failed to maintain effective controls against diversion and design and operate sufficient [suspicious order monitoring] systems to do so[,]” and that the “plaintiffs did not prove that defendants’ due diligence with respect to suspicious orders was inadequate.” Id. at 438.

While the plaintiffs asserted that the volume of prescription opioids distributed by the defendants was “per se unreasonable,” the district court also determined that the plaintiffs “failed to show that the volume of prescription opioids distributed in Cabell/Huntington was because of unreasonable conduct on the part of defendants.” Id. at 449. The court specifically noted “there is nothing unreasonable about distributing controlled substances to fulfill legally written prescriptions.” Id. The court also recognized that the plaintiffs “offered no evidence that [d]efendants ever distributed controlled substances to any entity that did not hold a proper registration from DEA or license from the West Virginia Board of Pharmacy” and “offered no evidence, expert or otherwise, of how many prescription opioids should have been distributed in Cabell/Huntington” while simultaneously claiming that the volume of the distribution was “excessive.” Id. at 468-69.⁷

In its conclusions of law, which relied heavily on the district court's findings of fact, the district court determined that public nuisance law does not provide a remedy for the plaintiffs based on the facts of this case. Id. at 471. Relatedly, the district court predicted that this Court would not “extend the law of public nuisance to the sale, distribution, and manufacture of opioids.” Id. at 475. In its analysis of what it considered to be the elements of public nuisance, the district court also decided that “Plaintiffs Have Failed to Show That Defendants’ Conduct Interfered with a Public Right.” Id. The district court concluded that the plaintiffs “failed to meet their burden of proving causation.” Id. at 481. Specifically, two causation subheadings in the order stated “Plaintiffs Have Failed to Prove That Defendants’ Conduct Was a Proximate Cause of Diversion,” id. at 476, and “Under the Evidence Presented, the Harms That Plaintiffs Claim Defendants Caused Are Too Remote,” id. at 481.

Regarding the plaintiffs’ proposed relief, a fifteen-year abatement plan, the district court found that the plan did not “include any provisions to constrain defendants’ conduct generally or their distribution of prescription opioids in the City of Huntington or Cabell County specifically.” Id. at 470. As a conclusion of law, the district court also determined that the relief the plaintiffs sought was “not properly understood as in the nature of abatement.” Id. at 484.

In light of the district court's findings and conclusions, the court entered a judgment in favor of the defendants. Id.

The plaintiffs then appealed to the Fourth Circuit on numerous grounds, contesting both the district court's factual findings and its entwined legal conclusions. On appeal, the plaintiffs argue that the district court erred in finding that their public nuisance claim “does not apply to the distribution and sale of opioids” and relatedly finding that the distributors “did not unreasonably interfere with a public right.” Contending that the distributors violated their duties under the CSA “by shipping suspicious orders without investigating them,” “continued to not investigate suspicious orders even after DEA actions,” and “supplied Cabell/Huntington's highest overprescribers of opioids,” the plaintiffs contest the district court's related factual findings regarding the distributors’ actions. The plaintiffs also maintain that the district court “Misinterpreted And Misapplied The CSA” by “incorrectly narrow[ing]” the distributors’ duties under the CSA, causing “erroneous fact-findings,” and also “erroneously ignored DEA's allegations and [the distributors’] admissions of wrongdoing,” and “Erred In Assessing The Reasonableness Of [the distributors’] Conduct.” Within that argument, the plaintiffs claim that the district court applied “erroneous legal standards” and “ignored and mischaracterized evidence of opioids’ harms.” The appeal also alleges that the district court erred when it determined that the plaintiffs “did not establish causation,” arguing that the defendants “Proximately Caused The Opioid Epidemic In Cabell/Huntington” and that the court “Misapplied The Causation Standard.” Finally, the plaintiffs claim that the district court also erred by determining that “the requested abatement remedy is unavailable.”

After the parties submitted briefing and argued before the Fourth Circuit, the Fourth Circuit sua sponte certified the question to this Court via a certification order pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code §§ 51-1A-1 through-13.

The certification order sets forth the procedural history of the case and addresses some of the district court's conclusions regarding the unavailability of a public nuisance claim or an abatement remedy, including the district court's determination that “West Virginia's common law did not cover the plaintiffs’ claims” and rejection of the abatement plan developed by “an expert in opioid abatement intervention.” Cert. Order, 96 F.4th at 645. Additional findings and conclusions by the district court appear in footnotes. Footnote three recognizes the district court’s determination that the plaintiffs “had not shown that the distributors’ conduct was unreasonable or was a proximate cause of any nuisance.” Id. at 645 n.3 (citing Amerisource, 609 F. Supp. 3d at 449, 476). However, the Fourth Circuit indicates that it would only need to “address the district court's alleged errors on reasonableness and causation” if this Court determines that public nuisance is “a cognizable claim in this case.” Id. Concluding that the district court's determinations regarding reasonableness and causation “are not ‘relevant to the [certified] question[s],’ ” the Fourth Circuit does not describe them. Id. (alterations in original) (quoting W. Va. Code § 51-1A-6(a)(2)).

Summarizing the statutory and regulatory framework relating to the CSA, the certification order describes it as a “ ‘closed regulatory system’ in which only entities registered with the DEA may manufacture, distribute, or dispense controlled substances.” Id. at 646 (quoting Gonzales v. Raich, 545 U.S. 1, 13, 125 S. Ct. 2195, 2203, 162 L. Ed. 2d 1 (2005)). After this summary, which includes information on the supply chain method for certain controlled substances and how registrants, including distributors, must disclose suspicious orders, the certification order recognizes that “[d]espite 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.’ ” Id. at 647 (quoting AmerisourceBergen Drug Corp., 609 F. Supp. 3d at 419). The Fourth Circuit lists statistics relating to drug overdoses, disease rates, and increases in crime and decreasing property values, as also recited in the district court's order. Id.

When briefly describing the CSA framework, the certification order contains a footnoted comment that it “set[s] forth the relevant statutory framework in the event that the Supreme Court of Appeals determines that the legality of the defendants’ actions affects the availability of the public nuisance remedy.” Id. at 646 n.4. In the same footnote, the Fourth Circuit acknowledges that, on appeal, the plaintiffs challenge “the district court's holdings on reasonableness and causation,” summarizing the plaintiffs’ arguments as follows: that they contend that the distributors violated statutory duties “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.’ ” Id. However, the certification order declares that it “do[es] 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.” Id.

In regard to the issue of a public nuisance cause of action, the certification order explains that the parties disagree on whether public nuisance “covers the defendants’ distribution of opioids,” and the order also recognizes that this Court “has not determined whether the common law of public nuisance may apply to conditions caused by distribution of a potentially dangerous product.” Id. at 648-49. In certifying the question to this Court, the Fourth Circuit asserts 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.” Id. at 651.

II.

STANDARD OF REVIEW

We exercise plenary review of a question certified by the Fourth Circuit: “ ‘A de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.’ ” Syl. pt. 1, Light v. Allstate Ins. Co., 203 W. Va. 27, 506 S.E.2d 64 (1998); see Syl. pt. 1, Bower v. Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.2d 424 (1999) (“This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.”).

During this review, “this Court will assume that the findings of fact by the certifying court are correct.” Barefield v. DPIC Companies, Inc., 215 W. Va. 544, 550, 600 S.E.2d 256, 262 (2004). Still, we may consider “any portions of the federal court's record that are relevant to the question of law to be answered.” Syl. pt. 2, in part, Valentine v. Sugar Rock, Inc., 234 W. Va. 526, 766 S.E.2d 785 (2014). Yet, in the case of disputed facts, we do not sit as a factfinder or as an appellate court reviewing the factfinder's determinations. See Persinger v. Carmazzi, 190 W. Va. 683, 685, 441 S.E.2d 646, 648 (1994) (“We would point out initially that we are not sitting as an appellate court. Rather, pursuant to W. Va. Code 51-1A-1 [1976] our job is simply to answer the questions of law posed by the Fourth Circuit.” (alteration in original)); Barefield, 215 W. Va. at 550, 600 S.E.2d at 262.

III.

DISCUSSION

The tragic effects of the opioid epidemic in Huntington and Cabell County are well-known and accepted by the parties. Yet, we resolve that we cannot, at this juncture, answer the question certified to this Court from the Fourth Circuit due to the disputed factual findings, and related legal conclusions resting on those factual findings, on appeal from the federal district court in this case.

This Court “may answer a question of law certified to it” by a federal circuit court “if the answer may be determinative of an issue in a pending cause in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this State.” W. Va. Code § 51-1A-3. As this Court has recognized, a proper certified question “can avoid needless delay, serve judicial economy, and avoid the expense of a trial and subsequent appeal for the parties.” Bass v. Coltelli, 192 W. Va. 516, 520, 453 S.E.2d 350, 354 (1994), superseded by statute, W. Va. Code § 58-5-2, as recognized by Smith v. Consol. Pub. Ret. Bd., 222 W. Va. 345, 664 S.E.2d 686 (2008) (regarding earlier version of West Virginia Code § 58-5-2, which allows state circuit courts to certify certain questions to this Court); see also Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S. Ct. 1741, 1744, 40 L. Ed. 2d 215 (1974) (acknowledging that certification “in the long run save[s] time, energy, and resources and helps build a cooperative judicial federalism”).

This Court has endeavored to answer certified questions from federal courts where proper and practical, and we value our collegial relationship with the Fourth Circuit. Still, as a threshold matter, we must recognize the limits on our power to answer certified questions. See W. Va. Code § 51-1A-3 (authorizing this Court to answer only questions of law). As we have recognized in the context of certifying questions from a state circuit court, under a different, yet informative, statutory scheme, a certified question's purpose is to “determine legal correctness” of certain issues that are “critical” to “determine the final outcome of a case.” Bass, 192 W. Va. at 520, 453 S.E.2d at 354. As we have often recited, this Court only answers a certified question if “the disposition of the case depends wholly or principally upon the construction of law determined by the answer, regardless of whether the answer is in the negative or affirmative.” State ex rel. Advance Stores Co. v. Recht, 230 W. Va. 464, 468, 740 S.E.2d 59, 63 (2013) (quoting Bass, 192 W. Va. at 521, 453 S.E.2d at 355) (regarding questions certified from a state court). Although we employ a de novo review, the certified question still must “bring ․ a framework sufficient to allow this Court to issue a decision which will be pertinent and inevitable in the disposition of the case below.” Recht, 230 W. Va. at 468, 740 S.E.2d at 63 (quoting Hairston v. Gen. Pipeline Constr., Inc., 226 W. Va. 663, 672 n.5, 704 S.E.2d 663, 672 n.5 (2010)). To answer a certified question, we require specific, undisputed facts and a question concerning a legal issue that substantially controls the case. In Barefield v. DPIC Companies, Inc., the Court recognized, and we now hold, that

pursuant to the Uniform Certification of Questions of Law Act, [West Virginia Code §]§ 51-1A-1 to-13 [1996], we are simply asked to answer questions of law. Accordingly, the factual record regarding the legal issue in dispute must be sufficiently precise and undisputed, and this Court will assume that the findings of fact by the certifying court are correct. Further, the legal issue must substantially control the case.

215 W. Va. at 550, 600 S.E.2d at 262 (second alteration in original); cf. Syl. pt. 5, in part, Bass, 192 W. Va. 516, 453 S.E.2d 350 (regarding certified questions from state circuit courts);⁸ see generally Shears v. Ethicon, Inc., 250 W. Va. 226, ___, 902 S.E.2d 775, 779 (2024) (answering questions regarding “the burden of proof borne by a plaintiff asserting a strict liability design defect claim” where facts were agreed upon).

In considering the question before us, we note that whether a nuisance exists is a factual issue. Moreover, this Court has repeatedly stated that “[a] public nuisance is an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons[,]” and has distinguished between a public and a private nuisance by explaining that a public nuisance “affects the general public,” while a private nuisance “injures one person or a limited number of persons only.” Sharon Steel Corp. v. City of Fairmont, 175 W. Va. 479, 483, 334 S.E.2d 616, 620 (1985) (quoting Hark v. Mountain Fork Lumber Co., 127 W. Va. 586, 595-96, 34 S.E.2d 348, 354 (1945)); Duff v. Morgantown Energy Assocs. (M.E.A.), 187 W. Va. 712, 716, 421 S.E.2d 253, 257 (1992) (per curiam) (quoting same from Hark); State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W. Va. 221, 241, 488 S.E.2d 901, 921 (1997) (quoting same from Sharon Steel and regarding the statute of limitations applicable to a public nuisance cause of action). Yet, while we have, at times, addressed the reasonableness or unreasonableness of an action when discussing nuisance, throughout our nuisance doctrine is a common thread: whether a nuisance exists “raises a question of fact.” Syl. pt. 5, in part, Sharon Steel Corp., 175 W. Va. 479, 334 S.E.2d 616 (quoting Syl. pt. 3, in part, Sticklen v. Kittle, 168 W. Va. 147, 287 S.E.2d 148 (1981) (regarding whether the use of real property is a nuisance).

As we must answer only questions of law that rest on an undisputed factual record, at times, this Court has declined to answer certified questions when the factual record was undeveloped.⁹ Recently, in SWN Production Co., LLC v. Kellam, the Court declined to answer a reformulated ¹⁰ certified question regarding the applicability of a contractual term because “[t]he answer to this question necessarily involves the exploration of contractual language, the possible need for interpretation of said language, and the development of facts to assist either the court or the factfinder, as appropriate.” 247 W. Va. 78, 81, 875 S.E.2d 216, 219 (2022); see also Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 156, 706 S.E.2d 63, 77 (2010) (refusing to answer a question when the answer to the certified question relied on the “the nature of the parties’ relationship,” which would require “a comprehensive factual analysis,” and the Court lacked “sufficient undisputed findings of fact allowing this Court to conduct such analysis”).

Disputed facts, not only undeveloped facts, also necessitate our declination of certified questions, and we are not alone in that approach. The Nevada Supreme Court declined to answer a certified question from a federal district court regarding the existence of a type of claim in a case where the certifying court recognized that “the parties dispute certain underlying facts and that the district court has not yet made any factual determinations with regard to those disputes.” Scottsdale Ins. Co. v. Liberty Mut. Ins. Co., 130 Nev. 1241, 2014 WL 7188790, at *1 (Dec. 16, 2014) (unpublished disposition). In declining the certified question, the Nevada Supreme Court resolved that with an “absence of an established set of underlying facts,” the court's “answers to the certified questions will largely not be determinative of any part of the federal case and will potentially be of questionable precedential value.” Id.

Such is the case here. In their appeal to the Fourth Circuit, and in their briefing before this Court, the plaintiffs contest the district court's factual findings favorable to the defendants and the related legal conclusions dependent upon those factual findings. Any attempt to reformulate or narrow the certified question still necessarily depends on these factual findings and related legal conclusions disputed by the parties and on appeal. We would have to assume that some or all of the district court's disputed findings of fact and related legal conclusions were incorrect to answer any kind of question regarding public nuisance, because if the district court's challenged findings and related conclusions are correct, this Court need not reach the legal question of whether a public nuisance cause of action exists in these circumstances.

The certification order suggests, through footnotes three and four, that the disputed facts and related legal conclusions do not matter to any analysis by this Court. In other words, the Court is asked to ignore the district court's factual findings and legal conclusions—particularly those findings relating to reasonableness, causation, and whether the defendants violated their statutory duties—and instead, answer the certified question in a vacuum. Yet, we cannot disregard the district court's findings, related conclusions, and the parties’ arguments regarding the same on appeal before the certifying court. With these issues in dispute, and therefore, with unsettled facts and related unreviewed legal conclusions, any answer would be advisory, even given a reformulation. See Wingett v. Challa, 249 W. Va. 252, 256, 895 S.E.2d 107, 111 (2023) (“Certified questions can and should be reformulated or refused to avoid issuing advisory opinions.”); see also Huston v. Mercedes-Benz USA, LLC, 227 W. Va. 515, 523-24, 711 S.E.2d 585, 593-94 (2011) (refusing to answer a second certified question because it would be advisory). We cannot assume what the Fourth Circuit will determine regarding the contested rulings by the district court, either factually or legally. And, as we have long recognized, “[c]ourts are not constituted for the purpose of making advisory decrees or resolving academic disputes.” Syl. pt. 1, in part, Harshbarger v. Gainer, 184 W. Va. 656, 403 S.E.2d 399 (1991) (quoting Mainella v. Bd. of Trs. of Policemen's Pension or Relief Fund of Fairmont, 126 W. Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943)).

IV.

CONCLUSION

For these reasons, we respectfully decline to answer the Fourth Circuit's certified question. Still, our declination does not preclude future consideration of this question, and does not affect whether we accept or decline answering future questions certified by a federal court related to the issues raised here, yet under conditions where we may more properly consider the question.

CERTIFIED QUESTION DECLINED

I write separately to emphasize that this Court's power to answer questions certified by our esteemed colleagues in the federal courts ¹ is not declined lightly here. I cherish this Court's role as the “final arbiter”² of West Virginia law and gratefully acknowledge the respectful deference inherent in a certified question. But our power is not without limit, and here it is necessary to exercise restraint. In short, we do not have the integral facts before us to guide a reasoned analysis, placing us in the precarious position of venturing a guess as to what the facts might ultimately be to then reach a conclusion that, as a matter of law, public nuisance does or does not extend to them. I not only concur in the majority's declination to answer the certified question but also see no other option at this stage of the proceeding.

A. District Court Proceedings

By the time the lawsuit filed by the City of Huntington and the Cabell County Commission against AmerisourceBergen Drug Corp., Cardinal Health, Inc., and McKesson Corp. (collectively, “Distributors”) was tried in federal district court, Plaintiffs’ claims had been narrowed to one: a public nuisance claim predicated on the theory that the Distributors “ ‘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,” which resulted in a public nuisance that was subject to abatement.³ The evidence at trial showed that “there is and has been an opioid epidemic in” Plaintiffs’ communities,⁴ involving, among other things, a high opioid overdose rate, “the highest incidence of Neonatal Abstinence Syndrome in the country,” increased child foster care placement, increased infectious disease rates, increased crime rates, and decreased property values.⁵ But the United States District Court for the Southern District of West Virginia concluded as a matter of law that the Distributors were not liable under a public nuisance theory for creating this epidemic.⁶

In entering judgment for the Distributors, the Southern District first observed that this Court has yet to rule “on the issue of whether the state's law of public nuisance affords a remedy in cases such as this,”⁷ and it predicted that “if confronted with the option to extend the law of public nuisance to the sale, distribution, and manufacture of opioids, the Supreme Court of Appeals of West Virginia would decline with good reason to do so.”⁸ But then, the Southern District analyzed the evidence presented during the ten-week trial and addressed the Plaintiffs’ public nuisance claim as though this Court would recognize the claim under the circumstances before the Southern District. Then, the court concluded that the Plaintiffs, simply put, had not proved their claim.

The Southern District's analysis started with the premise that, “[t]o establish a public nuisance, a plaintiff must prove ‘an unreasonable interference with a right common to the general public.’ ”⁹ In reaching its conclusion that the Plaintiffs failed to prove that the Distributors unreasonably interfered with a public right, the Southern District described the “closed system” for controlled substances established by the Controlled Substances Act ¹⁰ and the Distributors’ obligations under the CSA and its implementing regulations to “guard against theft and diversion of controlled substances” and to “design and operate a system” for detecting suspicious orders of controlled substances.¹¹ The Distributors met these obligations, the Southern District found, and the Plaintiffs did not prove that the Distributors otherwise “failed to maintain effective controls against diversion” or that Distributors’ “due diligence with respect to suspicious orders was inadequate.”¹² The Southern District also found that the Plaintiffs did not prove that the volume of opioids distributed in their communities was due to “unreasonable conduct” on the Distributors’ part.¹³ So, the Southern District concluded, “the distribution of medicine to support the legitimate medical needs of patients as determined by doctors exercising their medical judgment in good faith cannot be deemed an unreasonable interference with a right common to the general public.”¹⁴

As to causation, the Southern District concluded that “[n]o culpable acts by [the Distributors] caused an oversupply of opioids in [Plaintiffs’ communities].”¹⁵ Rather, doctors exercising independent medical judgment prescribed opioids, and the Distributors shipped them to licensed pharmacies to meet the demand created by those prescriptions.¹⁶ The Southern District also found no evidence of diversion while opioids were in the Distributors’ custody or control.¹⁷ And, the Southern District concluded that the harms Plaintiffs claimed that the Distributors caused were too remote due to intervening causes like overprescribing doctors, pharmacies that dispense the excessive prescriptions, and diversion created by illegal usage.¹⁸

B. Court of Appeals Proceedings and Certification Order

After the Southern District entered judgment in favor of the Distributors, the Plaintiffs appealed to the United States Court of Appeals for the Fourth Circuit. The Plaintiffs contest the Southern District's determination that West Virginia public nuisance law does not extend to the distribution and sale of opioids, and they also challenge the findings and conclusions made in assessing the Plaintiffs’ evidence. The Distributors, on the other hand, argue that the Southern District correctly resolved the factual issues before it and correctly found that public nuisance law does not extend to the distribution of lawful products.

After briefing and argument before the Fourth Circuit, the Fourth Circuit made no determination on the Southern District's findings and conclusions. Instead, the Fourth Circuit certified to this Court 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?[19]

In its certification order, the Fourth Circuit recounted the procedural history of this case and the Southern District's prediction that this Court would “decline to extend West Virginia's common law of public nuisance to the sale, distribution, and manufacture of opioids.”²⁰ The Fourth Circuit summarized the closed system within which the Distributors distribute controlled substances and the “public health crisis” Plaintiffs’ communities are facing despite controls contained in the CSA.²¹ It also briefly described public nuisance law developed by this Court, reciting that “a public nuisance is ‘an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons’ ”²² and citing footnote 6 of Duff v. Morgantown Energy Associates, where we said that “this definition is consistent with the Restatement (Second) of Torts § 821B(1) (1979), which defines a public nuisance as ‘an unreasonable interference with a right common to the general public.’ ”²³ The Fourth Circuit then recounted the Plaintiffs’ arguments and the Distributors’ counterarguments regarding whether the conditions caused by the distribution of a controlled substance can constitute a public nuisance.²⁴

But as to the facts regarding the reasonableness of any interference with a public right and proximate cause—facts the Southern District found relevant in analyzing the Plaintiffs’ public nuisance claim—the Fourth Circuit offered no discussion. Instead, the Fourth Circuit noted, by way of footnote, that “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.”²⁵ It deemed the findings on reasonableness and causation “not ‘relevant to the [certified] question[s].’ ”²⁶ In another footnote, the Fourth Circuit declined to “expand on” arguments related to whether the Distributors complied with their obligations under the CSA, even though findings that the Distributors complied with the CSA went hand in hand with the Southern District conclusion on the reasonableness of the Distributors’ conduct.²⁷

So pending appellate review, the factual conclusions of the Southern District stand. These include that the Distributors complied with duties imposed by the CSA and/or otherwise did not fail to control against diversion, engaged in no unreasonable conduct, did not interfere with a public right, and engaged in no conduct that was a cause of the harms identified by the Plaintiffs. And the certification order contains no facts identifying the conduct the Distributors engaged in (or whether that conduct was compliant with the CSA), the public right(s) purportedly interfered with, or any causal links between conduct and harm. We know only that Distributors distributed opioids in a closed system and that an opioid epidemic exists in the Plaintiffs’ communities. It is against this backdrop that we are asked whether “conditions caused by the distribution of a controlled substance [can] constitute a public nuisance.”

As the Southern District and Fourth Circuit correctly recognized, this Court has yet to consider the applicability of the public nuisance doctrine to the opioid epidemic. Addressing public nuisances in other contexts, we have said that “[a] public nuisance is an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons.”²⁸ Stated another way, it is “an unreasonable interference with a right common to the general public.”²⁹ We have also said that the question of whether a nuisance exists is generally one of fact,³⁰ and it “is one of degree.”³¹ Because of the factual nature of the question, any analysis about whether a given scenario could constitute a public nuisance as a matter of law must be anchored by settled, relevant facts.³²

To illustrate, even though the Supreme Court of Oklahoma held broadly that “Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids,”³³ its holding was informed by a developed factual record. In that case, the State sued an opioid manufacturer, alleging that it “failed to warn of the dangers associated with opioid abuse and addiction in promoting and marketing its opioid products” and that this conduct constituted a public nuisance.³⁴ The Oklahoma trial court entered judgment in the State's favor,³⁵ and the manufacturer appealed, bringing before the Supreme Court of Oklahoma “for review ․ a compilation of both findings of fact and conclusions of law.”³⁶ The Supreme Court of Oklahoma reversed.³⁷

In determining that Oklahoma's public nuisance law did not extend to an opioid manufacturer's manufacturing, marketing, and selling of prescription opioids, the court found, first, that the State failed to show a violation of public right; instead, the damages the State sought were “more in line with a private tort action for individual injuries sustained from use of a lawful product and in providing medical treatment or preventative treatment to certain, though numerous, individuals.”³⁸ The court found no “public right to be free from the threat that others may misuse or abuse prescription opioids.”³⁹ The second factor considered by the court in reaching its holding was that the manufacturer “did not control the instrumentality alleged to constitute the nuisance at the time it occurred.”⁴⁰ In particular, irrespective of any warnings the manufacturer gave, it could not control how the product was distributed, laws governing distribution by pharmacies, how doctors prescribed the products, how pharmacies dispensed them, or how individuals used or responded to the products.⁴¹ And third, the court found that “the district court held [the opioid manufacturer] responsible for products that entered the stream of commerce more than 20 years ago, shifting the wrong from the manufacturing, marketing, or selling of a product to its continuing presence in the marketplace.”⁴²

So, in determining that an opioid manufacturer's conduct in marketing and selling its products could not constitute a public nuisance under Oklahoma law, the Supreme Court of Oklahoma had before it facts concerning the conduct engaged in by the manufacturer that allegedly created the public nuisance; identification of the public rights allegedly violated; and facts bearing on causation, such as the manufacturer's control (or lack thereof) over its opioids at the time the nuisance was created and the fact that the harm occurred not at the point of manufacturing, marketing, or selling, but twenty years after the product entered the stream of commerce. In short, in addressing the extent of Oklahoma's public nuisance law, the court knew what it was (or, more precisely, was not) extending the law to cover, and it had the facts before it to issue a well-supported decision explaining just how the conduct, public rights allegedly implicated, and causal chain were beyond acceptable limits of public nuisance liability.

Here, conversely (and setting aside that the Plaintiffs did not prove their case during trial and the consequent potential for issuing an advisory opinion based on facts that are now merely abstract and theoretical), the certification order provides only that there is an opioid epidemic in the Plaintiffs’ communities and that the Distributors distributed opioids to those communities within a closed system. Far from irrelevant, the facts essential to meaningful consideration of whether something constitutes a public nuisance as a matter of law include identification of the specific conduct the Distributors engaged in (or failed to engage in), the public rights allegedly violated, and the causal link alleged to exist between the conduct and the harms. These are the facts considered by the Southern District in concluding that the Plaintiffs failed to prove that the Distributors caused a public nuisance, and they are the facts considered by the Supreme Court of Oklahoma in determining that Oklahoma's public nuisance law did not extend to the manufacturing, marketing, and selling of prescription opioids. Because the existence of a nuisance is a matter of degree, we cannot know whether West Virginia public nuisance law extends to something without knowing what we are being asked to extend it to.

The Maine Supreme Judicial Court, in a similar case, offered observations relevant here about the need for a resolution of all material facts before adjudicating a certified question:

As we construe the [certification] statute, it contemplates that our response will be “determinative of the cause”—and in fact if this were not so the statute would not satisfy constitutional requirements [of a justiciable controversy] as we have already indicated. We cannot see that this can ever be so if the facts remain unresolved and in a hypothetical state․ If we are to participate and yet not render purely advisory opinions, we think it will be incumbent upon us to respond to questions only when it is apparent from the certification itself that all material facts have been either agreed upon or found by the court and that the case is in such posture in all respects that our decision as to the applicable Maine law will in truth and in fact be “determinative of the cause” as the statute conferring jurisdiction upon us requires. Such is not the case here.[43]

The Maine court declined to answer the certified question. For these same reasons, I concur in the majority's decision.

I respectfully dissent from the majority's refusal to answer the question certified to this Court by the United States Court of Appeals for the Fourth Circuit (“the Fourth Circuit”). The question clearly falls within the parameters of West Virginia Code section 51-1A-3 (2016), which provides that

[t]he Supreme Court of Appeals of West Virginia may answer a question of law certified to it by any court of the United States or by the highest appellate court or the intermediate appellate court of another state or of a tribe or of Canada, a Canadian province or territory, Mexico or a Mexican state, if the answer may be determinative of an issue in a pending cause in the certifying court and if there is no controlling appellate decision, constitutional provision or statute of this state.

(Emphasis added). Here, there is no question that our answer to the first part of the certified question, “[u]nder West Virginia's common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance?”, will be determinative of one issue pending before the Fourth Circuit; and further, our answer to the second part of the certified question, “if so, what are the elements of such a public nuisance claim?”, will then guide the Fourth Circuit's determination of other issues pending before that court involving fault and causation. In short, nothing in our law compels the conclusion that a certified question must be dispositive of an entire case, which appears to be the majority's underlying rationale. Our mandate is to resolve an issue, which is exactly what the Fourth Circuit has asked us to do. See State ex rel. Advance Stores Co. v. Recht, 230 W. Va. 464, 468–69, 740 S.E.2d 59, 63–64 (2013) (“In the final analysis, this Court will not address a certified question if it is not dispositive of a controlling issue in a case.”) (emphasis added).

The majority relies upon a case in which this Court declined to answer a certified question on the ground that a certified question should not be considered by this Court “unless the disposition of the case depends wholly or principally upon the construction of law determined by the answer, regardless of whether the answer is in the negative or affirmative.” Bass v. Coltelli, 192 W. Va. 516, 521, 453 S.E.2d 350, 355 (1994). I find the majority's reasoning to be wholly unpersuasive. First, the Bass formulation was not, and has never been, elevated to a syllabus point; in this regard, “we have repeatedly stated, ‘․ [n]ew points of law ․ will be articulated through syllabus points as required by our state constitution.’ ” State ex rel. Vanderra Res., LLC v. Hummel, 242 W. Va. 35, 42–43, 829 S.E.2d 35, 42–43 (2019) (footnote and citation omitted). Additionally, the formulation, which was adopted wholesale from an inapposite North Dakota case,¹ has no textual support in West Virginia Code section 51-1A-3. Finally, the Bass formulation is wholly inconsistent with this Court's routine acceptance of certified questions that come to us in the context of the lower court's rulings on motions to dismiss or motions for summary judgment. In all of those cases, one answer to the question will cause the underlying case to be dismissed, while another answer will allow it to go forward – which is exactly the situation presented here. See, e.g., State ex rel. Morrissey v. Diocese of Wheeling-Charleston, 244 W. Va. 92, 94, 851 S.E.2d 755, 757 (2020) (circuit court granted defendant's motion to dismiss and then certified question); Michael v. Appalachian Heating, LLC, 226 W. Va. 394, 397-98, 701 S.E.2d 116, 119-20 (2010) (circuit court denied defendant's motion to dismiss and then certified question); Aikens v. Debow, 208 W. Va. 486, 490, 541 S.E.2d 576, 579 (2001) (circuit court denied defendant's motion for summary judgment and then certified question); see also Valentine v. Sugar Rock, Inc., 234 W. Va. 526, 531, 766 S.E.2d 785, 790 (2014) (Fourth Circuit certified question to this Court where “federal district court and the state circuit court had applied similar precepts of West Virginia law to the identical Ritchie County properties, and yet had reached manifestly irreconcilable outcomes.”).

In enacting West Virginia Code section 51-1A-3, the West Virginia Legislature wisely gave this Court a flexible tool for resolving issues such as the one presented in this case. In declining to utilize this tool in order to answer the certified question, this Court could well be viewed as having once again ducked an issue which it has ducked on three previous occasions. See State ex rel. AmerisourceBergen Drug Corp. v. Thompson, No. 15-1026 (W. Va. Jan. 5, 2016) (Order refusing petition for writ of prohibition); State ex rel. AmerisourceBergen Drug Corp. v. Hummel, No. 19-0210 (W. Va. June 4, 2019) (Order refusing petition for writ of prohibition); State ex rel. CVS Pharmacy, Inc. v. Moats, No. 22-635 (W. Va. Sept. 8, 2022) (Order refusing petition for writ of prohibition). We may never have a better opportunity than the one we are squandering today. The certified question in this case is one of great importance to our State, which has been ravaged by a flood of epic proportions: a flood of opioids which has, over the course of decades, overtaken the capacity of State, county, and municipal institutions and programs to remediate the damage caused in its wake.² The petitioners in this case, whose coffers are inadequate to fully effect such remediation, deserve an answer to their overarching question: is there a light at the end of this tunnel?

Additionally, as the Fourth Circuit has recognized, the certified question is one that should be resolved by this Court, not by a federal court taking an “Erie guess”³ as to how we would resolve it. Although there is case law from other jurisdictions which may be instructive, or even persuasive, the fact is that none of it deals with West Virginia's unique history as reflected in the evolution of our public nuisance case law.

Taking all of these factors into account, I believe this Court has the duty and responsibility to answer the certified question posed to us by the Fourth Circuit. In that regard, I would answer the first part of the question in the affirmative and provide guidance as to the elements of a public nuisance cause of action as set forth herein. More specifically, I would hold that under West Virginia's longstanding common law, “[a] public nuisance is an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons.” Hark v. Mountain Fork Lumber Co., 127 W. Va. 586, 595, 34 S.E.2d 348, 354 (1945). Thus, the distribution of a controlled substance as defined in West Virginia Code section 17C-1-68 (2021) is actionable under a public nuisance theory if it causes a condition of widespread harm, meaning that it causes hurt or inconvenience to an indefinite number of persons.

This result would be wholly consistent with our decision in Sharon Steel Corp. v. City of Fairmont, 175 W. Va. 479, 334 S.E.2d 616 (1985), where we defined a public nuisance as

an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons. The distinction between a public nuisance and a private nuisance is that the former affects the general public, and the latter injures one person or a limited number of persons only. Ordinarily, a suit to abate a public nuisance cannot be maintained by an individual in his private capacity, as it is the duty of the proper public officials to vindicate the rights of the public.

Id. at 483, 334 SE.2d at 620; see also Duff v. Morgantown Energy Assoc., 187 W. Va. 712, 716 n.6, 421 S.E.2d 253, 257 n.6 (1992) (finding that the language in Hark “is consistent with the Restatement (Second) of Torts § 821(B)(1) (1979), which defines a public nuisance as ‘an unreasonable interference with a right common to the general public.”). This result would also be consistent with the analyses of the various circuit court judges, including judges on the Mass Litigation Panel, who have issued rulings over the past decade upholding the viability of the public nuisance doctrine as a cause of action in opioid litigation.⁴ Additionally, this result would be consistent with the position taken by two former Attorneys General who, recognizing that the opioid crisis affected cities and counties all over this State, utilized the public service doctrine as a basis for litigation which ultimately brought millions of dollars of settlement money into the State treasury.

Further, I would adopt, with some modifications, the elements of the cause of action proposed by the plaintiff/petitioners:

1. The condition(s) caused by the defendant's distribution of the controlled substance must interfere with a public right, hurting or inconveniencing an indefinite number of persons. A public nuisance does not lie to compensate individual victims for the harms particular to them;

2. The defendant's conduct in distributing the controlled substance must be unreasonable under the facts and circumstances of the case;

3. The defendant's conduct must be a proximate cause of the harmful condition(s) sought to be redressed; and

4. The relief sought must be abatement of the harmful condition(s), whether by the defendant or by the plaintiff utilizing funding provided by the defendant.5

The petitioners are entitled to an answer to the question posed by the Fourth Circuit, and the respondents’ argument to the contrary can fairly be deemed cursory at best; it consists of one brief paragraph and a footnote. Unfortunately, the majority has come to the rescue by making the argument the respondents could have made, but did not. I respectfully dissent to the Court's decision to postpone, for the fourth time, a decision on this issue of critical importance. I am authorized to state that Judge Salango joins in this dissenting opinion.

FOOTNOTES

1.   We appreciate the participation of Amici Curiae, the American Tort Reform Association, the National Association of Counties, the County Executives of America, the National League of Cities, the International Municipal Lawyers Association, the West Virginia Sheriffs’ Association, the West Virginia Association of Counties, the County Commissioners’ Association of West Virginia, the West Virginia Municipal League, West Virginia United Health Systems, Inc., Vandalia Health, Inc., the American Public Health Association, the National Association of County and City Health Officials, the Product Liability Advisory Council, Inc., Dr. Jeffrey L. Leaberry, M.D., the West Virginia Manufacturers Association, and Janssen Pharmaceuticals, Inc. We considered their arguments in reviewing the certified question.

2.   Typically, when this Court reviews the factual and procedural history relating to a certified question from a federal court, we consider the facts as they are relayed by the certifying court, although we may also consider the record before that court. See Syl. pt. 2, Valentine v. Sugar Rock, Inc., 234 W. Va. 526, 766 S.E.2d 785 (2014). While we rely somewhat on the limited facts and procedural history as recited in the Fourth Circuit's certification order, we also note many of district court's findings of fact and related conclusions of law disputed by the plaintiffs on appeal, although these findings and related conclusions were not discussed at length in the certification order. We find it necessary to recite portions of the district court's findings and conclusions to explain our determination that this is not a certified question that this Court may answer at this juncture. Throughout the opinion, we use citations to indicate whether the information is from the Fourth Circuit or the district court.

3.   The original complaints included other defendants and causes of action. However, those defendants and causes of action are not relevant here.

4.   The district court identifies the operative complaint as the Third Amended Complaint. City of Huntington v. AmerisourceBergen Drug Corp., 609 F. Supp. 3d 408, 414 (S.D.W. Va. 2022).

5.   Bellwether trials are, essentially, test cases in multidistrict litigation in federal courts:Bellwether trials are individual trials that are conducted by MDL transferee judges with the goal of producing reliable information about other cases centralized in that MDL proceeding․ If bellwether cases are representative of the broader range of cases in the MDL proceeding, they can provide the parties and court with information on the strengths and weaknesses of various claims and defenses and the settlement value of cases.Melissa J. Whitney, Fed. Jud. Ctr., Bellwether Trials in MDL Proceedings: A Guide for Transferee Judges 3-4 (2019).

6.   This duty is related to “the statutory factors that the DEA must consider in deciding whether to revoke a distributor's registration.” AmerisourceBergen Drug Corp., 609 F. Supp. 3d at 423.

7.   The district court also recognized that “even if there was some level of ‘illegal prescribing’ in Cabell/Huntington,” it was “unable to discern” if the illegal prescribing “was significant enough to impact the overall volume of prescription opioids distributed by defendants.” AmerisourceBergen Drug Corp., 609 F. Supp. 3d at 470. The court further found that “detecting and thwarting illegal prescribing is not the duty of distributors,” but instead the distributors’ role is to “detect and avoid supplying pharmacies that are themselves not part of the ‘legitimate medical ․ channel[ ].’ ” Id. (emphasis and alterations in original) (quoting 21 U.S.C. § 823(b)(1)). The court concluded that “[t]he facts of this case do not support a failure to fulfill that role by defendants.” Id.

8.   Syllabus point 5 of Bass v. Coltelli, in part, reads as follows: “[C]ertification [of a question] will not be accepted unless there is a sufficiently precise and undisputed factual record on which the legal issues can be determined. Moreover, such legal issues must substantially control the case.” 192 W. Va. 516, 453 S.E.2d 350 (1994), superseded by statute, W. Va. Code § 58-5-2, as recognized by Smith v. Consol. Pub. Ret. Bd., 222 W. Va. 345, 664 S.E.2d 686 (2008). We have applied these limitations both to questions certified from our state courts, pursuant to West Virginia Code § 58-5-2, and from federal courts, pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code §§ 51-1A-1 to -13. See Barefield v. DPIC Companies, Inc., 215 W. Va. 544, 550, 600 S.E.2d 256, 262 (2004) (addressing a question certified from a federal court, yet citing Syllabus point 5 in Bass, 192 W. Va. 516, 453 S.E.2d 350, regarding the certification of questions from a state circuit court pursuant to West Virginia Code § 58-5-2). Federal courts have also recognized these limitations when certifying questions to this Court. See, e.g., Rich v. Simoni, No. 1:12CV12, 2014 WL 4978442, at *37 (N.D.W. Va. Sept. 30, 2014), certified question answered, 235 W. Va. 142, 772 S.E.2d 327 (2015) (adopting magistrate court's recommendation for certification that quotes and cites cases relating to questions certified pursuant to West Virginia Code § 58-5-2).

9.   The authorizing statute for certified questions also reflects the requirement of an undisputed factual record and requires that a certification order contain “[t]he facts relevant to the question, showing fully the nature of the controversy out of which the question arose,” and, “[i]f the parties cannot agree upon a statement of facts,” the court certifying the question must “determine the relevant facts” and must “state them” in the certification order. W. Va. Code § 51-1A-6(a)(2), (b). The Court has recognized that the purpose of the factual statement requirement in § 51-1A-6(a)(2) relates to the fact that “the certifying court sends only one document to this Court for review: the certification order,” without briefs, an appendix, or records, yet the Court may examine the record when answering the question. Valentine, 234 W. Va. at 532, 766 S.E.2d at 791. However, these statutory requirements emphasize the need to have undisputed facts to answer the question.

10.   “When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under ․ the Uniform Certification of Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. ․” Syl. pt. 3, in part, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993); Syl. pt. 1, SWN Prod. Co., LLC v. Kellam, 247 W. Va. 78, 875 S.E.2d 216 (2022).

1.   See W. Va. Code § 51-1A-3.

2.   United States v. Taylor, 596 U.S. 845, 859 (2022).

3.   City of Huntington, W. Va. v. AmerisourceBergen Drug Corp., 96 F.4th 642, 644 (4th Cir. 2024).

4.   City of Huntington, W. Va. v. AmerisourceBergen Drug Corp., 609 F.Supp.3d 408, 419 (S.D. W. Va. 2022).

5.   Id. at 420-21.

6.   See id. at 484.

7.   Id. at 472.

8.   Id. at 475.

9.   Id. at 475 (quoting Duff v. Morgantown Energy Assocs., 187 W. Va. 712, 716 n.6, 421 S.E.2d 253, 257 n.6 (1992)).

10.   See 21 U.S.C. §§ 801-904.

11.   609 F.Supp.3d at 421-22 (quoting 21 C.F.R. §§ 1301.71(a) & 1301.74(b)).

12.   Id. at 425, 438.

13.   Id. at 449.

14.   Id. at 475.

15.   Id. at 476.

16.   Id.

17.   Id. at 479.

18.   Id. at 481-82.

19.   Cert. Order, 96 F.4th at 644.

20.   Id. at 644-45.

21.   Id. at 646-47.

22.   Id. at 648 (quoting State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W. Va. 221, 241, 488 S.E.2d 901, 921 (1997)).

23.   Id. (quoting Duff, 187 W. Va. at 716 n.6, 421 S.E.2d at 257 n.6).

24.   See id. at 648-49.

25.   Id. at 645 n.3.

26.   Id. (quoting W. Va. Code § 51-1A-6(a)(2)).

27.   Id. at 646 n.4.

28.   Hark v. Mountain Fork Lumber Co., 127 W. Va. 586, 595-96, 34 S.E.2d 348, 354 (1945).

29.   Duff, 187 W. Va. at 716 n.6, 421 S.E.2d at 257 n.6 (quoting Restatement (Second) of Torts § 821B(1) (Am. L. Inst. 1979)).

30.   See, e.g., Martin v. Williams, 141 W. Va. 595, 612, 93 S.E.2d 835, 845 (1956) (noting that the question of whether a nuisance exists depends upon the facts adduced); Syl. Pt. 5, Sharon Steel Corp. v. City of Fairmont, 175 W. Va. 479, 334 S.E.2d 616 (1985) (holding that determining whether a nuisance exists “raises a question of fact”).

31.   Harless v. Workman, 145 W. Va. 266, 275, 114 S.E.2d 548, 553 (1960) (observing that whether a nuisance exists “is one of degree, and usually turns on a question of fact”).

32.   See W. Va. Code § 51-1A-3 (1996) (“The Supreme Court of Appeals of West Virginia may answer a question of law certified to it ․”); id. § 51-1A-6 (1996) (requiring a certification order to contain “[t]he question of law to be answered” and “[t]he facts relevant to the question”).

33.   State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719, 721 (Okla. 2021).

34.   Id. at 721-22, 725.

35.   Id. at 722.

36.   Id. at 723.

37.   Id. at 731.

38.   Id. at 726-27.

39.   Id. at 727.

40.   Id. at 727-28.

41.   Id. at 728-29.

42.   Id. at 729.

43.   In re Richards, 223 A.2d 827, 833 (Me. 1966).

1.   In Gelinske v. Farmers Grain & Trading Co., 446 N.W.2d 261, 262 (N.D.1989), the Supreme Court of North Dakota based its decision on a certification statute that is very different from ours. See Bass, 192 W. Va. at 521 n.4, 453 S.E.2d at 355 n.4.

2.   As Justice John Hutchison cogently summarized the situation, “[t]o be blunt, the opioid crisis is ‘a man-made plague, twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated.’ ” State ex rel. AmerisourceBergen Drug Corp. v. Moats, 245 W. Va. 431, 449, 859 S.E.2d 374, 392 (2021) (Hutchison, J., concurring) (footnote and citation omitted).

3.   See Am. Comp. Ins. Co. v. Ruiz, 389 So. 3d 1060, 1061 n.1 (Miss. 2024) (“Taking its name from Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938), an Erie guess occurs when, in the absence of a state statute or caselaw on point, a ‘federal court must divine and enforce the rule that it believes this court would choose if the case were pending here.’ ”) (citations omitted).

4.   See text supra, listing cases where defendant have sought to challenge those rulings on petitions for writ of prohibition.

5.   In this regard, I am persuaded by the reasoning of the court in In re Nat'l Prescription Opiate Litig., No. 1:17-MD-2804, 2019 WL 4194272, at *3 (N.D. Ohio Sept. 4, 2019): “Unlike tort damages that compensate an injured party for past harm, abatement is equitable in nature and provides a prospective remedy that compensates a plaintiff for the costs of rectifying the nuisance.”

JUSTICE BUNN delivered the Opinion of the Court.

JUSTICE ARMSTEAD and JUSTICE TRUMP, deeming themselves disqualified, did not participate. JUDGE DIMLICH and JUDGE SALANGO, sitting by temporary assignment. JUSTICE WALKER concurs and may write separately. CHIEF JUSTICE WOOTON and JUDGE SALANGO dissent and may write separately.