CHARLESTON, W.Va. (AP) – A federal appeals court on Tuesday overturned a landmark decision in West Virginia that had rejected efforts by an opioid-ravaged area to be compensated by U.S. drug distributors for an influx of prescription painkillers into the region.
The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that a lower court judge erred when he said West Virginia's public nuisance law did not apply to the opioid distribution lawsuit.
“West Virginia law permits the abatement of a public nuisance and includes the requirement that a defendant pay money to finance efforts to eliminate the resulting harm to the public,” the 4th Circuit wrote. “West Virginia has long characterized abatement as an equitable solution.”
The ruling sends the case back to the U.S. District Court in Charleston for “further proceedings consistent with the principles expressed in this opinion.”
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.
In July 2022, U.S. District Judge David Faber ruled in favor of three major U.S. drug distributors accused by Cabell County and the city of Huntington of creating a public health crisis by distributing 81 million pills in the county over eight years. AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp. were also accused of ignoring signs that Cabell County was ravaged by addiction.
Faber said the West Virginia Supreme Court has only applied public nuisance law in the context of conduct that encroaches 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.”
Last year, the federal appeals court sent a certified question to the state Supreme Court, stating: “Can conditions caused by the distribution of a controlled substance constitute a public nuisance under the common law of West Virginia, and if so, what are the elements of such a public nuisance claim?”
The state judges declined to answer. That 3-2 opinion in May returned the case to federal court.
“We hold that the West Virginia Supreme Court would not, as a matter of law, bar any common law claim for a public nuisance caused by the distribution of a controlled substance,” the 4th Circuit wrote Tuesday. “We therefore necessarily conclude that the district court erred when it found that a public nuisance claim based on the distribution of opioids was, by itself, legally insufficient under West Virginia law.”
During arguments earlier this year before the Supreme Court on the certified issue, Steve Ruby, an attorney for the companies, called plaintiffs' arguments for expanding the nuisance law to include opioid manufacturers “radical.” If that were allowed, he said, it would “spark an avalanche of activist lawsuits.”
The appeals court previously noted that the West Virginia Mass Litigation Panel, which deals with resolving 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 2022 decision, Faber also said prosecutors failed to present evidence that the defendants distributed controlled substances to entities 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.
But the 4th Circuit Court ruled Tuesday that the lower court “misconstrued the distributors' duties” under the Controlled Substances Act.
The plaintiffs had requested more than $2.5 billion, which would have gone to the prevention, treatment and education of opioid use over the past fifteen years.
In 2021, Cabell County, a county on the Ohio River with a population of 93,000, saw 1,059 emergency responses for suspected overdoses — significantly higher than each of the previous three years — with at least 162 deaths.
