A federal judge handed a rare trial victory for businesses connected to the drug epidemic by rejecting claims that the three biggest US distributors of opioids disregarded warning signs when they sent millions of pills to a West Virginia community.
In a ruling issued on Monday, US District Judge David Faber stated that Cabell County, West Virginia, and its largest city, Huntington, did not suffer from a public nuisance caused by McKesson Corp., Cardinal Health Inc., and AmerisourceBergen Corp. According to the plaintiffs, between 2006 and 2014, the companies supplied more than 127 million painkillers to local pharmacies, or about 142 pills per person, per year.
The judge came to the conclusion that the local governments had not shown that the distributors had failed to implement “effective controls” to prevent opioids from being used for illicit purposes and that it was therefore impossible to hold the companies liable for the millions of dollars in damages associated with the painkillers under state law.
In his 184-page decision, Faber stated that “the opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington.” “And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law.”
Settlement Opt-Out
According to researchers, Cabell County’s overdose death rate during the time period covered by the lawsuit was more than five times the national average, making West Virginia one of the hardest-hit states by the opioid epidemic. A settlement with the distributors was rejected by West Virginia officials last year on the grounds that it didn’t cover the local governments still fighting the epidemic.
In that settlement, McKesson, from Irving, Texas, Cardinal Health, offrom Dublin, Ohio, and AmerisourceBergen, from Conshohocken, Pennsylvania all agreed to pay $21 billion to resolve the majority of the thousands of opioid lawsuits brought by state and local governments across the US.
Gabriel Weissman, a company spokesman, said in a statement that pharmaceutical distributors like AmerisourceBergen “have been asked to walk a legal and ethical tightrope between providing access to necessary medications and acting to prevent diversion of controlled substances. “Today’s ruling will help enable our company to do what we do best — ensuring that health care facilities like hospitals and community pharmacies have access to the medications that patients and care providers need.”
According to a statement by company spokesman Eric Timmerman, Faber’s decision supports the legal arguments made by Cardinal Health. According to the judge, the company is legally in the business of offering a “secure channel to deliver medications of all kinds from manufacturers to our thousands of hospital and pharmacy customers that dispense them to their patients based on doctor-ordered prescriptions.”
According to David Matthews, a company spokesman, McKesson officials maintain “strong programs designed to detect and prevent opioid diversion within the pharmaceutical supply chain,” because they recognize that prescription drug abuse is a persistent problem.
Public Nuisance
The majority of the remaining lawsuits accuse businesses involved in the opioid supply chain of causing public nuisances through their marketing initiatives, supply of the drugs, and sales of them. Normally, disputes involving property or pollution rely on this legal theory. On July 5, a state court is scheduled to open the next trial for the claims brought by West Virginia counties and cities against the distributors.
Faber’s decision follows those of state-court judges in Oklahoma and California, who also rejected claims of public nuisance. However, juries that heard cases have agreed with nearly identical accusations against the opioid manufacturer Teva Pharmaceuticals in New York state court as well as against CVS Health Corp. in federal court in Ohio.
Attorneys argued that the distributors in the Cabell County case disregarded warning signs regarding excessive opioid orders from West Virginia pharmacies.
According to Huntington Mayor Steve Williams, “this case was always about holding these distributors accountable and providing our doctors, nurses, counselors, first responders and social workers with some of the resources needed to combat the opioid crisis.”
The companies claimed that rather than prescription drugs being smuggled in on legitimate shipments, the real cause of the opioid epidemic ravaging West Virginia’s towns and cities is the importation of illegal drugs by gangs. Additionally, they claimed that under the state’s laws, extending public nuisance laws to pharmaceutical disputes was improper.
Attorneys for the West Virginia local governments released a statement in which they expressed their “deep disappointment” both personally and on behalf of the residents of Cabell County and the city of Huntington. “We felt the evidence that emerged from witness statements, company documents, and extensive datasets showed these defendants were responsible for creating and overseeing the infrastructure that flooded West Virginia with opioids,” they stated.
The case is City of Huntington v. AmerisourceBergen, 17-cv-1362, US District Court, Southern District of West Virginia (Charleston).
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