Pills spilling out of a medicine container

Judge declines to toss opioid lawsuit as trial set to start next month

This article was originally published in the Herald-Dispatch.

HUNTINGTON — Opioid distributors’ last-ditch effort to have a judge throw out Cabell County and Huntington’s claims against them for lack of standing was shot down Wednesday, about a month ahead of trial.

The lawsuits were filed in 2017 against AmerisourceBergen Corp., McKesson and Cardinal Health — the “Big Three” drug distributors, who are accused of being a public nuisance by blindly pumping pain pills into Appalachia, thus fueling opioid and later heroin addiction. The lawsuits argue the distributors breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates.

In February the defendants had argued the governments lacked standing under West Virginia law to sue for the public nuisance they alleged. They argued West Virginia nuisance law for over 100 years has been confined to cases’ involvement with use of public property or resources, not a product.

They argued the plaintiffs’ claim against them — that a person has the right not to be injured by another’s claimed negligence or a dangerous product — is that of a private nature, not public.

The plaintiffs disagreed, stating the defendants assumed that the opioid epidemic could only infringe on private rights, but the opioid crisis showed the opposite.

In his ruling released Wednesday, Judge David A. Faber said although the allegations against the defendants is not as obvious as the maintenance of an open dump, the same principles apply and may constitute the defendants’ business ideals may have constituted a nuisance.

He said if the defendants were right, a company’s engaging in a generally legal line of business cannot constitute a public nuisance. As examples, the judge referenced a dental office using unlicensed staff to perform root canals or a local restaurant’s habitual service of alcohol to minors and a law maintenance company applying illegal pesticides.

“Because the overall businesses of practicing dentistry, running a restaurant, and operating a lawn maintenance company are lawful, illegal acts that further those businesses would be shielded from the law of public nuisance regardless of the threat to public health,” he wrote.

Plaintiff attorneys Paul T. Farrell Jr. of Farrell Fuller Law & Anne Kearse of Motley Rice LLC said the ruling reaffirms the legacy of the claims and West Virginians’ right to face the distributors.

“Drug distributors ignored their obligations under the Controlled Substance Act and actively pumped pills into American communities like Cabell County and Huntington,” they said. “The repeated attempts by the Big Three distributors to delay their courtroom reckoning will not deter these communities from pursuing the resources they need now to combat the opioid crisis that has only worsened amid the COVID-19 pandemic.”

The trial is set to move forward May 3, as scheduled.