Federal judge rules against hard-hit West Virginia community in opioid lawsuit

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In a blow to claims that drug companies fueled the opioid crisis, a federal judge ruled on Monday that the nation’s three major drug distributors did not cause public nuisance by shipping millions of pain medications causing addiction to a West Virginia community that was among the hardest hit.

In a legal victory for AmerisourceBergen, Cardinal Health and McKesson, Judge David A. Faber rejected the argument of Cabell County and its county seat, Huntington, that distributors were responsible for the consequences of an opioid flood, according to the judge’s order filed in the US District Court of West Virginia.

The distributors denied wrongdoing and said the painkillers they shipped were prescribed by licensed doctors and filled by pharmacies. They argued that they had no way of telling that these prescriptions weren’t legitimate and that any of the drugs may have made their way to the black market.

The arguments of the distributors’ lawyers resonated with the judge, who ruled that the plaintiffs had failed to prove that the companies’ conduct was unreasonable, a key element in establishing a case of public nuisance. He held that the companies’ behavior could not be linked to the harm suffered by the communities. Finally, he ruled that the plaintiffs had not devised a detailed reduction plan outlining how the communities would spend the money they would receive if they prevailed at trial.

The increase in the number of pills destined for West Virginia was due in part, he said, to “good faith distribution” as well as increased product thresholds set by the Drug Enforcement Administration. .

“The opioid crisis has taken a massive toll on the citizens of Cabell County and the City of Huntington. And while there is a natural tendency to assign blame in such cases, they should be decided not on the basis of sympathy, but on the facts and the law,” Faber wrote in his decision. “In view of the court’s findings and conclusions, the court finds that judgment should be given in favor of the defendants.”

Ultimately, Faber ruled that public nuisance laws were wrongly applied in the case.

“The extension of nuisance law to cover the marketing and sale of opioids is inconsistent with history and traditional notions of nuisance,” he wrote.

The decision comes nearly a year after lawyers for the defendants and plaintiffs completed their case at a trial before the judge last summer. Following the lawsuit, the three distributors finalized a nationwide $21 billion settlement with a large majority of states, counties and cities to resolve most of the lawsuits against them. West Virginia communities were not part of this agreement. 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 were considering appealing.

“We are deeply disappointed personally and for the citizens of Cabell County and the City of Huntington,” plaintiffs’ attorneys said in a statement. responsible for creating and overseeing the infrastructure that flooded West Virginia with opioids.

Representatives of pharmaceutical companies applauded Faber’s decision.

“We continue to be deeply concerned about the impact the opioid crisis is having on families and communities across our country,” McKesson said in a statement. “McKesson maintains and continuously improves robust programs designed to detect and prevent the diversion of opioids within the pharmaceutical supply chain. We only distribute controlled substances, including opioids, to DEA-registered and state-licensed pharmacies.

“We applaud the Court’s decision, which recognizes what we have demonstrated in court, that we do not manufacture, market or prescribe prescription drugs, but rather provide a secure channel to deliver drugs of all kinds. from manufacturers to our thousands of hospital and pharmacy customers who dispense them to their patients based on physician-prescribed prescriptions,” Cardinal Health said in a statement.

AmerisourceBergen said in a statement, “We are pleased with the court’s decision that struck down the notion that the distribution of FDA-approved drugs to licensed and registered healthcare providers in Cabell County and the City of Huntington was a public nuisance.”

Before the coronavirus pandemic began, the lawsuit in West Virginia was expected to be a telling test of a new legal strategy in the broad national litigation against companies including drugmakers and pharmacies. Lawyers for Huntington and Cabell County argued that companies were shipping drugs without heeding warning signals that pills could have been diverted to the black market, with costly consequences for communities devastated by addiction. and deaths.

As the pandemic delayed trials across the country and other lawsuits were resolved with settlements, the West Virginia lawsuit moved forward. During the nearly three-month trial in Charleston in the summer of 2021, plaintiffs argued the companies should have been alarmed by the significant increase in drugs being shipped to the Appalachian community at the height of the pill crisis. .

In an eight-year period ending in 2014, more than 81 million prescription hydrocodone and oxycodone pills were dispensed in West Virginia County, enough for 94 pills for every adult and child. per year.

Lawyers representing Cabell County and Huntington have asked the three companies for $2.6 billion to recover from the drug epidemic.

The judge’s decision comes after the public nuisance claims 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 drugmaker of engaging in deceptive marketing practices. And in northern Ohio, a federal jury ruled in favor of communities arguing that major retail pharmacies — CVS, Walgreens and Walmart — left opioids in the wrong hands unchecked.

A trial in a West Virginia state court ended after the state attorney general in April settled $99 million with Janssen Pharmaceutical, a subsidiary of Johnson & Johnson, and $161.5 million with Teva Pharmaceuticals, AbbVie’s Allergan and others.

Paul Farrell, a West Virginia attorney representing communities, began his closing argument by referring to Pulitzer Prize-winning Eric Eyre’s report that distributors first revealed they shipped 780 million pills to the State in six years.

“This newspaper series sparked a congressional investigation into pill dumping in West Virginia and kicked off what has been described as the most complex and significant litigation in the nation’s history,” Farrell told the judge.

The massive wave of drugs also caught the DEA’s attention, according to Joe Rannazzisi, the former head of its diversion control office, who testified that the agency warned distributors to take a closer look at their customers, especially “large quantities”. of controlled substances downstream to pharmacies without any proper review, due diligence, reporting. »

“They were just shipping,” he said.

After a spike in prescription opioid deaths, communities argued that users were turning to cheaper street drugs, compounding the problem of overdose and addiction. During the trial, Huntington Mayor Steve Williams testified that he witnessed a 2014 SWAT raid on a large shipment of heroin delivered to a home in his town, realizing the seriousness of the problem and fueling his sense of urgency. Now Williams said funds were needed to help deal with the worsening crisis.

“I’m not looking to make money,” he said. “All I’m looking for is the ability to be able to make my community heal.”

In the previous decade, 1,100 people died of opioid overdoses in Cabell County, considered the epicenter of the crisis. In 2008, more West Virginians died from drug overdoses than car accidents.

During the trial, Robert Nicholas, an attorney for AmerisourceBergen, acknowledged the toll of the outbreak, but said the blame placed on distributors was “misplaced” and “artificial”.

“Nobody in Cabell County or Huntington got a prescription for an opioid painkiller without a doctor,” Nicholas said.

County and city attorneys presented evidence that leaders shed light on the public health crisis in the emails. They asked AmerisourceBergen executive Chris Zimmerman about a parody song about OxyContin-addicted “pillbillies” during his May testimony. Public outrage over the news of the email prompted death threats, according to the company’s lawyers.

“I shouldn’t have sent the email,” testified Zimmerman, the company’s senior vice president and chief investigations officer. But he added that the exchange was hand-picked and that AmerisourceBergen’s corporate culture was of “the highest caliber”.

The father of an 18-year-old who died of an opioid overdose in 2001 took to Twitter to decry the verdict.

“NO justice,” wrote Ed Bisch.

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