A case against major drug distributors over the flood of painkiller pills that devastated West Virginia is back in court. This time, the case is before the state Supreme Court, which is considering whether the overdose crisis qualifies under West Virginia law as a “public nuisance.”
Public nuisance is a legal term for something that endangers public health and safety. A person or company responsible can be sued and forced to remedy a public nuisance.
Typically in West Virginia, courts have applied public nuisance law to cases putting citizens at risk of exposure to environmental pollution, such as coal truck ash and arsenic in a river.
In drug distributors’ arguments, they say that it is not applicable to shipments of a lawful product.
How did we get here?
Counties and cities across West Virginia filed lawsuits against drug distributors, manufacturers and pharmacies, saying they fueled the opioid epidemic resulting in thousands of lost lives, grieving families and overwhelmed law enforcement and treatment providers.
But Cabell County and Huntington have been fighting one case on their own.
Opioid litigation cases across the county were consolidated in a court overseeing multi-district cases in the Northern District of Ohio.
U.S. District Judge Dan Polster selected the lawsuit filed by Cabell County and Huntington to serve as a “bellwether” case, meaning it could indicate how similar cases might fare. He sent the case back to federal court in West Virginia.
Those municipalities alleged drug distributors AmeriSource Bergen Drug Corp., Cardinal Health, Inc. and McKesson Corp. caused a public nuisance by knowingly shipping an excessive amount of pills to the area, resulting in more than 700 deaths from opioid overdoses in Cabell County between 2015 and 2020.
They said to abate the crisis — abatement means remedying a public nuisance — companies should pay them $2.5 billion dollars, which a Johns Hopkins researcher estimated it would take to support their recovery.
Cabell County and Huntington lost their case when in 2022, U.S. District Judge David Faber ruled in favor of the companies, agreeing with their argument that public nuisances don’t include lawful product distribution.
Soon after, more than 100 cities and counties settled with the same companies for $400 million, to be dispersed throughout the state.
This meant while they received money, companies didn’t have to admit liability.
Cabell County and Huntington appealed, and they presented their case to the 4th U.S. Circuit Court of Appeals in Richmond, Va., last year.
A three-judge panel there decided that the West Virginia Supreme Court should determine if state law considered drug distribution as something that would be found to be a public nuisance.
Why is the Supreme Court’s decision important?
Huntington and Cabell County say prescription drug distributions are different from other product distributions as federal law requires companies to monitor and report large prescription requests, because these drugs have potential for misuse.
Companies say applying the law would result in a flood of new nuisance cases. In oral arguments last week, an attorney for the companies, Steve Ruby, argued it could result in cases over everything from foods associated with obesity to gun deaths.
Ruby said companies and Faber agreed that distributors were only responding to prescription orders written by licensed doctors and sent to pharmacies.
David Frederick, a lawyer for the communities, said Faber was “led into error by the distributors who wanted to shunt the blame to everybody else.”
If the city and county prevail, the case would be sent back to the 4th Circuit. A ruling there in favor of defendants would end the case. Judges there could also rule in favor of the communities, which could mean defendants could appeal to the U.S. Supreme Court, or they could send the case back to Faber.
Even if Huntington and Cabell County lose, they would still be eligible for funds from the West Virginia First Foundation. That’s because that organization is distributing $1 billion from settlements with multiple entities, including pharmacies and manufacturers, and Cabell County and Huntington are only excluded from the $400 million other municipalities received in settlements with distributors.
Companies also say the communities can’t prove they caused the opioid crisis, so they shouldn’t have to pay to remedy its impacts.