A federal appeals court on Tuesday revived the efforts of the city of Huntington and Cabell County to hold the nation’s largest drug distributors responsible for that community’s opioid overdose crisis.
The 4th U.S. Circuit Court of Appeals overturned a district judge’s ruling that West Virginia’s nuisance law — a central part of the Huntington-Cabell lawsuit — could not be applied to the case.
“We hold that under West Virginia common law, the conditions resulting from the over-distribution of opioids can constitute a public nuisance,” the 4th Circuit said in a 49-page opinion authored by Senior Judge Barbara Milano Keenan.
The ruling sends the case back to U.S. District Judge David Faber. The appeals court did not order a new trial, but instead instructed Faber to re-examine the case through a different legal test.
In the ruling, Milano wrote that Faber ruled too narrowly on almost all aspects of the case.
While noting that the West Virginia Supreme Court of Appeals did not weigh in what constitutes a public nuisance, the Fourth Circuit found that past interpretations show the law is broad, encompassing the issues brought on by the opioid epidemic.
The court also noted Faber’s ruling did not take into account the “Big Three” drug distributors’ responsibility to make sure painkillers were not fueling the illegal drug trade under the federal Controlled Substances Act.
“If the distributors’ duties under the act were as limited as the district court held, the act’s purpose to prevent diversion of controlled substances would be substantially undermined,” Milano wrote.
And finally, the appeals court found the local governments’ request for $2.5 billion over 15 years to fix the issues brought on by the opioid crisis meshes with current state law.
“West Virginia has long characterized abatement as an equitable remedy,” the ruling stated.
After a 10-month trial in 2021, Faber had ruled in favor of drug distributors AmeriSource Bergen Drug Corp., Cardinal Health Inc., and McKesson Corp.
“The Fourth Circuit Court of Appeals has held what the City argued and believes — that distributors of opioids have a legal duty to prevent the diversion of highly addictive opioids, and that we are able to seek to hold them accountable for the devastating harm that they have caused our city and far too many of its families,” said Huntington Mayor Patrick Farrell in a statement.
“We look forward to a new day in court and the chance to apply the law to provide relief for the residents of our community.”
In an email, Mike Iorfino, a spokesperson for Cencora, formerly known as AmerisourceBergen, said the company is disappointed by Tuesday’s decision and continues to believe that the earlier district court ruling was correct.
“Distributors of pharmaceutical products are asked to walk a legal and ethical tightrope between providing access to necessary medications and acting to prevent diversion of controlled substances,” he wrote “We are considering next steps, including potentially seeking further appellate review of the 4th Circuit’s decision.”
Cardinal Health, through a spokesperson, declined to comment. McKesson did not respond to a request for comment.
