In a blow to allegations that pharmaceutical companies fueled the opioid crisis, a federal judge ruled Monday that the nation’s three largest drug distributors did not cause a public nuisance by sending millions of addictive pain pills to a West Virginia community that was among the most hard wounds. In a legal victory for AmerisourceBergen, Cardinal Health and McKesson, Judge David A. Faber rejected an argument by Cabell County and its seat, Huntington, that distributors bear responsibility for the consequences of an opioid flood, according to his order judge filed. in the US District Court of West Virginia. The distributors denied wrongdoing and said the painkillers they sent were prescribed by licensed doctors and paid for by the pharmacies. They argued that they had no way of telling that these prescriptions were not legitimate and that any of the drugs could have been funneled into the black market. The distributors’ lawyers’ arguments resonated with the judge, who ruled that the plaintiffs had failed to show that the companies’ conduct was unreasonable, a key element in establishing a public nuisance case. It found that the behavior of the companies could not be linked to the damage suffered by the communities. Finally, he ruled that the plaintiffs failed to come up with a detailed abatement plan outlining how the communities would spend the money they would receive if they prevailed in the lawsuit. The increase in pills going into West Virginia was due in part, he said, to “bona fide distribution” as well as increased drug limits set by the Drug Enforcement Administration. “The opioid crisis has significantly impacted the citizens of Cabell County and the City of Huntington. And while there is a natural tendency to assign blame in such cases, it must be decided not on the basis of sympathy, but on the basis of fact and law,” Faber wrote in his ruling. “Considering the court’s findings and conclusions, the court finds that judgment should be entered in favor of the defendants.” In the end, Faber ruled that public nuisance laws had been misapplied in the case. “Extending the law of nuisance to cover the trafficking and sale of opioids is inconsistent with the history and traditional notions of nuisance,” he wrote. The ruling comes nearly a year after attorneys for the defendants and plaintiffs took their case to trial before a judge last summer. After the trial, the three distributors reached a $21 billion national settlement with the vast majority of states, counties and cities to resolve most of the lawsuits against them. Communities in West Virginia were not part of this deal. Lawyers involved in the case said they were surprised by how long it took Faber to issue his decision. Lawyers for the plaintiffs said they are considering an appeal. “We are deeply disappointed personally and for the citizens of Cabell County and the City of Huntington,” attorneys for the plaintiffs said in a statement. responsible for creating and overseeing the infrastructure that flooded West Virginia with opioids.” Drug company representatives cheered Faber’s decision. “We continue to be deeply concerned about the impact the opioid crisis is having on families and communities across our nation,” McKesson said in a statement. “McKesson maintains—and continually enhances—robust programs designed to identify and prevent opioid diversion within the pharmaceutical supply chain. We only dispense controlled substances, including opioids, at DEA-registered, state-licensed pharmacies.” “We welcome the Court’s decision, which recognizes what we have proven in court, that we do not manufacture, market or prescribe prescription drugs, but instead only provide a secure channel for the delivery of drugs of all kinds from manufacturers to our thousands of hospitals and pharmacy customers who dispense them to their patients based on physician prescriptions,” Cardinal Health said in a statement. AmerisourceBergen said in a statement, “We are pleased with the court’s ruling that struck down the notion that the distribution of FDA-approved drugs to licensed and registered health care providers in Cabell County and the Town of Huntington was a public nuisance.” Before the start of the coronavirus pandemic, the West Virginia trial was supposed to be a test of a new legal strategy in the sprawling national lawsuit against companies, including pharmacists and pharmacies. Attorneys for Huntington and Cabell County argued that the companies were sending drugs without regard for the pills on the black market, leading to costly consequences for communities devastated by addiction and deaths. While the pandemic delayed trials across the country and other lawsuits were resolved through settlements, the West Virginia trial moved forward. During the nearly three-month trial in Charleston in the summer of 2021, the plaintiffs argued that the companies should have been alarmed by the significant increase in drugs being shipped to the Appalachian community during the pill crisis. In an eight-year period ending in 2014, there were more than 81 million prescription hydrocodone and oxycodone pills dispensed in West Virginia County, enough for 94 pills for every adult and child annually. Attorneys representing Cabell County and Huntington have sought $2.6 billion from the three companies for drug epidemic recovery efforts. The judge’s ruling comes after claims of public nuisance were dismissed by a California state judge and the Oklahoma Supreme Court. But the argument prevailed elsewhere: In New York State Court, a jury ruled against Teva Pharmaceuticals after the state accused the Israel-based pharmaceutical company of engaging in deceptive marketing practices. And in northern Ohio, a federal court ruled in favor of the communities, arguing that major retail pharmacies — CVS, Walgreens and Walmart — allowed opioids into the wrong hands without checks. A trial in West Virginia state court followed the state attorney general settled in April for $99 million with Johnson & Johnson subsidiary Janssen Pharmaceutical and for $161.5 million with Teva Pharmaceuticals, AbbVie’s Allergan and others. Paul Farrell, a West Virginia attorney representing the communities, began his opening argument by referring to Eric Eyre’s Pulitzer Prize-winning report that the first discovered distributors shipped 780 million pills into the state over six years. “This series of papers sparked a congressional investigation into pill dumping in West Virginia and launched what has been described as the most complex and longest trial in the nation’s history,” Farrell told the judge. The drug boom also caught the DEA’s attention, according to Joe Rannazzisi, former head of the Bureau of Diversion Control, who testified that the agency warned dealers to look more closely at their customers, especially “large quantities of controlled substances going downstream to pharmacies without any proper review, due diligence, reporting.” “They were just shipping,” he said. After the increase in prescription opioid deaths, communities argued that users were turning to cheaper street drugs, leading to a worsening problem of overdose and addiction. During the trial, Huntington Mayor Steve Williams testified that he watched a 2014 SWAT raid on a large shipment of heroin delivered to a home in his town, realizing the severity of the problem and fueling a sense of urgency. Now, Williams said funds are needed to help deal with the worsening crisis. “I’m not looking for a money grab,” he testified. “All I’m looking for is the ability to be able to make sure my community can heal.” Over the past decade, 1,100 people have died of opioid overdoses in Cabell County, considered the epicenter of the crisis. In 2008, more West Virginians died from drug overdoses than from traffic accidents. During the trial, Robert Nicholas, an attorney for AmerisourceBergen, acknowledged the outbreak’s toll but said the blame placed on the distributors is “misplaced” and “contrived.” “Nobody in Cabell County or Huntington got a prescription for an opioid pain reliever without a doctor,” Nicholas said. County and city attorneys presented evidence that executives shed light on the public health crisis in the emails. They asked AmerisourceBergen executive Chris Zimmerman about a parody song about OxyContin-addicted “mats” when he testified in May. According to the company’s lawyers, public outrage over news of the email sparked death threats. “I shouldn’t have sent the email,” testified Zimmerman, the company’s senior vice president and head of investigations. But he added that the exchange was selective and that the corporate culture at AmerisourceBergen was “of the highest caliber.” The father of an 18-year-old who died of an opioid overdose in 2001 decried the verdict on Twitter. “NOT justice,” wrote Ed Bisch.
