Appeals panel asks West Virginia court whether opioids distribution can cause a public nuisance

CHARLESTON, W.Va. — A federal appeals court on Monday asked West Virginia’s highest court whether opioid distribution can create a public nuisance as it reviews a landmark lawsuit against three major U.S. drug distributors accused of creating a health crisis in one of the counties of the state.

In July 2022, a federal judge in Charleston, West Virginia, ruled in favor of AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp. The lawsuit accused them of distributing 81 million pills over eight years in Cabell County, which has been devastated. due to opioid addiction.

The verdict came nearly a year after the conclusion of oral arguments in a court trial in the lawsuit brought by Cabell County and the city of Huntington.

The lawsuit alleged that the distributors created a public nuisance and ignored signs that the area was ravaged by addiction. But U.S. District Judge Faber said the West Virginia Supreme Court has only applied nuisance law in the context of conduct that infringes on public property or resources. He said expanding the law to include the marketing and sale of opioids “goes against history and traditional understandings of nuisance.”

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, sent a certified question to the West Virginia Supreme Court, stating: “Under the common law of West Virginia, conditions caused by the distribution of a controlled substance may constitute a public nuisance and , as So, what are the elements of such a public nuisance claim?”

According to the 4th Circuit, if the Supreme Court answers the question “no,” that means the current appeal is over.

The appeals court noted that the West Virginia Mass Litigation Panel, which resolves complex cases in state court, has concluded in several cases that opioid distribution “may form the basis for a public nuisance claim under the common law of West Virginia.”

In his decision, Faber also noted that prosecutors presented no evidence that the defendants distributed controlled substances to an entity that did not have proper registration with the U.S. Drug Enforcement Administration or the State Board of Pharmacy. The defendants also had suspect monitoring systems as required by the Controlled Substances Act, he said.

In 2021, Cabell County, a county on the Ohio River with a population of 93,000, saw 1,067 emergency responses for suspected overdoses — significantly higher than each of the previous three years — with at least 162 deaths. There were at least 115 emergency room visits for suspected overdoses in the first two months of this year, according to preliminary data from the U.S. Department of Human Services’ Office of Drug Control Policy.

The plaintiffs had sought more than $2.5 billion, which would have gone toward response efforts. The goal of the 15-year response plan would have been to reduce overdoses, overdose deaths and the number of people with opioid use disorder.

Thousands of state and local governments have filed lawsuits over the toll of opioids. The lawsuits relied heavily on claims that the companies were causing a public nuisance by failing to monitor where the potent prescriptions ended up. Most of the lawsuits were settled as part of a series of nationwide deals that could be worth more than $50 billion. But there was no decisive trend in the outcomes of those who went to trial.