West Virginia top court urged to revive landmark opioid case against distributors

McKesson

28/01/2025 23:58

By Brendan Pierson
       Jan 28 (Reuters) - A West Virginia city and county on
Tuesday urged the state's top court to revive their $2.5 billion
lawsuit accusing the three largest U.S. drug distributors of
fueling the opioid epidemic, asking it to rule that opioid sales
can give rise to a public nuisance under state law.
    The city of Huntington and its county, Cabell, in 2022 lost
their case against Cencora  COR.N , Cardinal Health  CAH.N  and
McKesson  MCK.N  following a non-jury trial. They claimed that
the companies sold an excessive amount of pills in the region
while ignoring red flags that they were being diverted into
illegal channels, resulting in an epidemic of addiction and
overdose deaths.
    U.S. District Judge David Faber in Charleston ruled that the
conditions caused by legally selling prescription drugs could
not be the basis for public nuisance claims. After the city and
county appealed that ruling, the 4th U.S. Circuit Court of
Appeals asked the West Virginia Supreme Court to decide whether
public nuisance claims in the state could extend to opioid sales
or not.
    If the court rules that they cannot, Faber's ruling will
stand. If it rules that they can, the case will go back to the
4th Circuit, which could decide the merits of the case or send
it back to Faber.
    "This court's cases have long held that public nuisance is a
flexible doctrine," David Frederick, a lawyer for Huntington and
Cabell told the court on Tuesday. He said that the public
nuisance claim concerned "not just the sale of a product, but
the manner of distribution of a highly addictive drug," and that
the distributors had ignored their obligation under federal law
to watch for red flags that drugs were being diverted to the
black market.
    Steven Ruby, representing the companies, said allowing the
public nuisance claims "will create an avalanche of activist
litigation."
    "Public nuisance becomes the monster that devours the entire
law of tort," he said, arguing that any harmful product could be
said to create a public nuisance by burdening the public health
system.
    The five-member court did not clearly indicate how it would
rule.
    The case was one of the first of thousands of similar public
nuisance lawsuits filed by state, local and Native American
tribal governments against drugmakers, distributors and
pharmacies over the opioid crisis. While most of the cases that
went to trial were unsuccessful, the litigation has resulted in
more than $50 billion in settlements.
    The state of West Virginia has obtained more than $1 billion
in opioid settlements, including $400 million from the three
distributors, the largest amount per capita of any state.
Huntington and Cabell cannot get any funds from the distributor
settlement because they chose to go to trial against them.
    Public nuisance claims have traditionally been used in cases
involving conduct that interferes with a public right, such as
obstruction of a public road or dumping waste on public land or
water. Rather than allowing injured plaintiffs to seek damages
to compensate them for their injuries, it allows courts to order
responsible parties to abate the nuisance.
    The opioid litigation is one of several recent efforts to
expand the doctrine to include a wider range of claims, along
with lawsuits over more general environmental pollution.
    The case is City of Huntington v. AmerisourceBergen, Supreme
Court of Appeals of West Virginia, No. 24-166.
    For petitioners: Paul Farrell of Farrell and Fuller; and
David Frederick of Kellogg, Hansen, Todd, Figel & Frederick
    For respondents: Steven Ruby of Carey Douglas Kessler & Ruby

    Read more:
    4th Circuit sends West Virginia city's opioid case to
state's top court
    West Virginia cities reach $400 mln opioid distributor
settlement
    U.S. drug distributors prevail in $2.5 billion West Virginia
opioid case

 (Reporting By Brendan Pierson in New York)