In a significant development related to a pivotal legal battle regarding opioid distribution in West Virginia, the state’s Supreme Court decided not to provide an answer to a critical question posed by the federal court. This query was central to an appeal in a high-profile lawsuit concerning whether opioid distribution could be considered a public nuisance. The decision leads to the case being redirected to the 4th U.S. Circuit Court of Appeals located in Richmond, Virginia.
About three years have passed since a federal judge in Charleston ruled against the claims made by Cabell County and the city of Huntington. The allegations suggested that three major U.S. drug distributors, namely AmerisourceBergen Drug Co., Cardinal Health Inc., and McKesson Corp., were instrumental in a public health crisis due to the delivery of 81 million opioid pills over eight years. The distributors were also accused of neglecting clear signs of addiction ravaging Cabell County.
The U.S. District Judge, David Faber, pointed out that West Virginia’s application of public nuisance law historically pertained to activities that impacted public property or resources. He reasoned that extending such laws to the opioid market would deviate from traditional understandings of nuisance laws.
Last year, the appeals court in Richmond directed a certified question to the state Supreme Court, asking if the distribution of a controlled substance could be legally termed a public nuisance under West Virginia’s common law, and what criteria would define such a claim. If the West Virginia justices had ruled in favor of the claim, the case would have progressed to the 4th Circuit; a ruling against would have resulted in an end to the appeal. However, the West Virginia justices abstained from making a ruling.
Justice Haley Bunn authored the Supreme Court’s opinion, while Justice Beth Walker, nearing her retirement, delivered a separate stance. Chief Justice Bill Wooton, alongside Circuit Judge Tera Salango, presented a dissenting opinion. Temporary assignments were given to Judges Salango and Andrew Dimlich after some justices recused themselves from the proceedings.
Paul Farrell Jr., representing the plaintiffs, expressed his disappointment over the court’s decision not to answer the looming legal question. Nonetheless, Farrell maintained optimism, emphasizing the continuation of the pursuit for justice despite acknowledging that the appeals court still needs to tackle both factual and legal complexities.
While a Cardinal Health representative chose not to comment on the ruling, efforts to reach out to AmerisourceBergen and McKesson for reactions were unsuccessful. Earlier, during state Supreme Court arguments over the certified question, Steve Ruby, representing the companies, described the claim for public nuisance as “radical” and warned of potential consequences, suggesting it might set off a wave of “activist litigation.”
Numerous state and local governments have initiated lawsuits concerning the devastating impact of opioids, heavily relying on the notion of public nuisance claims due to the companies’ failure to monitor opioid prescription distribution. Many of these cases have settled through national agreements potentially surpassing $50 billion in value, though trial outcomes have been inconsistent.
The appeals court acknowledged that the West Virginia Mass Litigation Panel, tasked with managing complex state court cases, has repeatedly affirmed that opioid distribution could legitimately underpin public nuisance claims under the state’s common law framework.
In his 2022 decision, Judge Faber noted the plaintiffs hadn’t demonstrated that any controlled substances were distributed to improperly registered entities. He also affirmed that the defendants implemented the required suspicious activity monitoring systems.
In Cabell County, an Ohio River county home to 93,000 residents, the year 2021 witnessed 1,059 emergency responses to suspected overdoses, marking a distressing record compared to previous years, with at least 162 fatalities reported. The plaintiffs had hoped for over $2.5 billion in funds dedicated to prevention, treatment, and education on opioid usage to be allocated over the next 15 years.