A federal appeals court on Monday weighed in on West Virginia’s Supreme Court as it hears a landmark case against three major U.S. pharmaceutical distributors accused of causing a health crisis in one of West Virginia’s counties. In contrast, it asked whether the distribution of opioids could cause a public nuisance.
In July 2022, a federal judge in Charleston, West Virginia, ruled in favor of Amerisource Bergen Drug Company, Cardinal Health, and McKesson. The lawsuit accused the companies of distributing 81 million pills over eight years in devastated Cabell County. Due to opioid addiction.
The verdict came nearly a year after closing arguments in a court hearing in a lawsuit brought by Cabell County and the city of Huntington.
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The lawsuit alleged that the dealers created a public nuisance and ignored signs that the area was being ravaged by addiction. But U.S. District Judge Faber said the West Virginia Supreme Court has applied public nuisance laws only in cases of interference with public property or resources. He said expanding laws to cover the marketing and sale of opioids is “inconsistent with the history and traditional concept of nuisance.”
The Fourth Circuit Court of Appeals in Richmond, Virginia, sent a certifying inquiry to the West Virginia Supreme Court, stating: So what are the elements of such a public nuisance claim?”
According to the 4th Circuit, if the Supreme Court answers “no” to the question, it means the current appeal is over.
Signs posted during a health event in Charleston, West Virginia on June 26, 2021. Naloxone is a drug that reverses the effects of an opioid overdose by helping the affected person breathe. A federal appeals court asked the West Virginia Supreme Court on March 18, 2024, to ask what constitutes a public nuisance as it reviews a landmark lawsuit against three major pharmaceutical companies. (AP Photo/John Lavie, File)
The appellate court ruled that the West Virginia Class Action Committee, which works to resolve complex cases in state court, found that the distribution of opioids “may form the basis of a public nuisance claim under West Virginia common law.” He pointed out that several lawsuits have been concluded.
Carl Tobias, a law professor at the University of Richmond, said the West Virginia Supreme Court is an authoritative source on the interpretation of the state’s substantive law, and it does not rule on public nuisance issues related to the distribution, sale, and use of opioids. He said he had not.
In his ruling, Farber also noted that the plaintiffs have not presented evidence that the defendants distributed controlled substances to organizations that lack proper registration with the U.S. Drug Enforcement Administration or state pharmacy boards. He said the defendants also had suspicious surveillance systems in place as required by the Controlled Substances Act.
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Cabell County, home to 93,000 residents along the Ohio River, had 1,067 emergency responses to suspected overdoses in 2021, far more than in each of the previous three years, and at least 162 people died. 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 state Department of Human Services’ Office of Drug Control Policy.
The plaintiffs were seeking more than $2.5 billion that would have been earmarked for abatement efforts. The goal of the 15-year reduction plan would have been to reduce the number of overdoses, overdose deaths, and people with opioid use disorder.
Thousands of state and local governments are suing over the opioid crisis. The lawsuit relied heavily on claims that the companies caused a public nuisance by failing to monitor where the powerful 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. However, there was no conclusive trend in the outcomes of those who went to trial.
