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2025-2026 Dishonorable Mentions

This report’s 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.

Fourth Circuit Embraces Expansive View of Public Nuisance Law

This fall, the U.S. Court of Appeals for the Fourth Circuit Court adopted an expansive interpretation of a West Virginia’s public nuisance law. 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.

However, in City of Huntington v. AmerisourceBergen Drug Corp., the federal appellate court held West Virginia’s public nuisance law could be invoked to impose liability on companies that distribute products, here opioid medications to pharmacies. Specifically, the City 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. There is no basis in West Virginia law for this expansive view of public nuisance law. These are product, not public nuisance, claims.

The trial court had it right. After a lengthy bench trial, it held that the distribution of prescription drugs cannot form the basis of a public nuisance action. 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 had initially certified these questions to the West Virginia Supreme Court of Appeals, which, after a hearing, decided not to answer them. The Fourth Circuit then used this lack of clarity as its rationale for finding that, because the West Virginia Supreme Court of Appeals 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.”

The Fourth Circuit then held—contrary to West Virginia law and every other state supreme court to hear similarly expansive public nuisance theories—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.’”

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. 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.

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. The only solace is that this ruling is not binding on WV courts and does not apply to any other state public nuisance law.

Colorado Court Issues Burdensome Evidentiary Decision

In June 2025, the Colorado Supreme Court issued a troubling decision that subjects defendants to unpredictable and unfair new liability exposure if they have not retained evidence that could be relevant to a suit brought months or years later.

Under prior Colorado law, defendants faced consequences if, after litigation commenced, they discarded or willfully destroyed evidence. This duty to preserve evidence was triggered upon the filing of a lawsuit or receiving clear notice that a person plans to sue, such as a demand letter. There was a clear, bright-line standard. That’s important because a failure to preserve evidence can result in the court instructing the jury to assume any missing records support the other side’s position (known as an “adverse inference”).

The Colorado Supreme Court’s decision in Terra Management Group, LLC v. Keaten instead adopts a loose test, requiring a party to preserve evidence whenever litigation is “reasonably foreseeable.” While the state supreme court provided factors for a trial court to consider when deciding whether to sanction a party for failing to preserve evidence, the court emphasized the “flexibility” of the new standard. Now, litigants in Colorado may face sanctions even when they fail to preserve records in good faith, not anticipating a lawsuit down the road.

As a result of the ruling, the Colorado Supreme Court upheld a $10.5 million award to a tenant who sued a property management company, alleging injuries from exposure to a meth lab operating in the unit below her apartment. The lawsuit was not filed until more than a year after the incidents, during which time the management company had heard nothing from the plaintiff.

The Colorado Supreme Court’s decision strips individuals and businesses of any clear guidance about when or what to preserve — effectively requiring parties to maintain any conceivable piece of evidence that might later be tied to litigation. Storing records or other items that are no longer needed on the off chance that they could be relevant to a future lawsuit will have needless costs. The alternative comes with a risk of substantial unfair liability.

Ohio Appellate Courts Allow Unlimited Noneconomic Damages

In a pair of 2025 decisions, two Ohio appellate courts struck down the state’s limit on noneconomic damages in medical liability cases, each on different grounds.

Ohio law provides that a person who is harmed by medical negligence can recover unlimited economic damages, such as for medical care and treatment expenses, lost earning capacity, or any other quantifiable cost. To maintain predictability and stability for Ohio’s healthcare environment, the Ohio legislature has set a considerable, but not unlimited, remedy for a plaintiff’s noneconomic damages, which are notoriously difficult (if not impossible) to measure objectively and reliably. In medical liability cases, the maximum noneconomic damage award is the greater of $350,000 or three times a plaintiff’s economic damages, or, in cases involving catastrophic injuries, $500,000.

In January 2025, Ohio’s Eighth Appellate District invalidated that law on due process grounds in Paganini v. Cataract Eye Center of Cleveland. In so doing, the appellate court second guessed the legislature’s determination that setting parameters for the size of noneconomic damage awards facilitates stability in the medical liability insurance rates for healthcare providers. While the court purported to invalidate that award “as applied” to a specific plaintiff’s case (who received a $1.5 million in noneconomic damages

award), its ruling suggests that reducing any award that substantially exceeds the statutory maximum is unconstitutional.

Then, in August 2025, the Tenth Appellate District also found the noneconomic damage law unconstitutional on both due process and equal protection grounds. In Lyon v. Riverside Methodist Hospital, the court gave proper deference to the legislature’s policy, but nevertheless found the limit “unreasonable and arbitrary” as applied to a plaintiff who had received a $20 million noneconomic damage award. The court ruled that those with severe injuries should be wholly exempt from any limit. Its decision suggested that, whether a person is severely injured in an auto accident or through medical treatment, he or she should be able to recover the same noneconomic damages. This approach, however, disregards the adverse consequences that can occur for doctors, patients, and the public when healthcare providers are hit with nuclear verdicts.

The result of these “as applied” rulings is that there is now uncertainty as to when Ohio’s statutory limit on noneconomic damages applies in medical liability cases. Plaintiffs’ lawyers are likely to challenge its application in virtually every case, which defeats the predictability that such a law is intended to provide. It will also make it far more difficult to settle medical liability cases, leading to needless litigation. The Ohio Supreme Court has granted review of Paganini and, as of this writing, is considering whether to review the Lyon decision. Meanwhile, legislation introduced in the Ohio General Assembly proposes a substantial increase in the statutory maximum, demonstrating that the legislature is perfectly capable of making such policy judgments without judicial intervention