Amid pending opioid litigation, Legislature looks at public nuisance law

During Monday’s Joint Judiciary meeting at the Capitol, former Solicitor General Elbert Lin, who now works for an out-of-state firm, said West Virginia’s laws create a threat to businesses by allowing frivolous lawsuits before asking the Legislatures to narrow the law and create “guardrails” for judges.

The city of Huntington has used the law several times in recent years to close down bars and businesses that attract violent criminal behavior.

The city, along with Cabell County, also put the law to test when it sued dozens of opioid companies it accuses of pumping a disproportionate amount of painkillers into the community, which led to it becoming known as the “overdose capital of the world” about a decade ago. Thousands of other municipalities have followed suit.

The influx of public nuisance claims brought by the opioid crisis, combined with mixed results in courtrooms across the county, has forced federal and state judges to reflect on the law’s meaning as they work to build a clearer picture of what a public nuisance is.

Lin asked the Legislature to codify what he sees as a narrow scope of the law, giving judges less say.

Representing Mountain State Justice, Anthony Majestro said the law should remain flexible because no one can predict what nuisances may come in the future. Majestro, who has served as counsel in several opioid-related public nuisance lawsuits over the past five years, said public nuisance laws provide a good balance for protecting citizens.

He said opioid litigation is a prime example of that.

“None of us could have imagined the opioid epidemic,” he said.

“The public nuisance claim has allowed the governmental entities in West Virginia on behalf of the citizens to recover damages from people who broke the law.”

Lin said public nuisance claims should not arise from “the wilderness” and be able to claim a public nuisance when a business was following the law and protocols.

“It’s about the ability to understand what the law requires of you and to allow a law-abiding and conscientious company, whether it’s big or small, to know what is expected of them and to be able to comply with that law going forward,” he said.

Majestro said there are checks and balances in place throughout the court system that prevent runaway cases from happening.

“You can’t just file a lawsuit and say, ‘That’s unreasonable. Pay me money,’” he said. “What you have in these cases is you have governmental entities and agencies exercising their discretion and finding that it’s necessary to alleviate a harm.”

Lin specifically pointed to a July 4 ruling handed down by a federal judge in Cabell County and Huntington’s lawsuit against opioid distributors they accused of fueling the opioid crisis.

In that ruling, the judge said ruling against the opioid firms would open the floodgates for lawsuits against any product with a known risk of harm. That ruling is currently under appeal.

While acknowledging there were some outlying cases, Majestro said other claims have been successful in several courts throughout the state, with 10 appeals sent to the West Virginia Supreme Court being tossed out.

The story is the same for several cases throughout the country, he said, which shows how important it is to not restrict the law.