BLUEFIELD – A one-year statute of limitations should limit the damages Cabell County and the City of Huntington can seek from three large drug distributors, according to attorneys for the companies.
During a February 8 hearing before U.S. District Judge David Faber, lawyers for AmerisourceBergen, Cardinal Health and McKesson Corp. said West Virginia law establishes a one-year statute of limitations for public nuisance case. Because of that, the companies say any claims made before 2016 shouldn’t be included in the cases that originally were filed in January and March of 2017.
“They (the plaintiffs) are going to tell you that no statute of limitations applies in this case because they seek equitable relief,” Cardinal Health attorney Ashley Hardin told Faber. “But whatever label we end up putting on that relief does not affect the running of the statute of limitations.”
Anthony Majestro, who is representing Cabell County, told Faber the defendants are confusing remedies for a public and a private nuisance claim.
“What the defendants want you to do is apply those private damage, private nuisance rules to a public nuisance case,” Majestro said. “The law is clear. There is no statute of limitations for claims seeking equitable relief.”
Hardin responded, saying a West Virginia Supreme Court opinion says it doesn’t matter if it’s a private or public nuisance case.
She also stressed the defendant companies are nothing more than wholesale distributors.
“We ship prescription drugs that are FDA approved, and we’re licensed by the DEA and registered by the state to do so,” she said. “It doesn’t matter how many we ship. We could have shipped too many just as the plaintiffs say. And every single one of them sits under lock and key at the pharmacy.
And they can’t get out into society unless a whole host of other DEA registered and state licensed entities write prescriptions and dispense the drugs. So, there is no pill spill. We do not, we do not drop these pills into the town square.”
Faber also heard arguments about the plaintiffs claiming the drug distributors had a duty not to ship pills when they noticed suspicious orders. Faber seemed to indicate he will wait to rule on that issue, but he also didn’t issue a ruling on the statute of limitations issue during the 90-minute remote hearing.
Last month, Faber again rescheduled the trial. The new tentative start date is May 3. The bench trial has been postponed a few times because of Coronavirus fears. If it goes forward then, the end of the trial is projected to be August 9.
The plaintiffs filed the suits alleging the wholesale drug company defendants are responsible for the costs government entities have had to pay because of the opioid epidemic. They say the drug companies have saturated parts of the country with shipments of prescription pain medication. The companies deny responsibility.
Last March, the defendant companies agreed to allow Faber to conduct a bench trial rather than having a jury. In that motion, the attorneys for the drug distributors say they still have a right to a jury trial. But, they agree to let Faber rule on the case with stipulations.
“After further consideration, however, defendants now consent to waive their right to a jury trial and accept plaintiffs’ proposal that plaintiffs’ punitive damage claims be dismissed with prejudice and that the remaining claims be tried by the court,” the motion stated. “Defendants’ consent in this regard does not alter the time that will be required for discovery, motions practice and other matters that must be completed before trial.”
The remaining claims are public nuisance and civil conspiracy.
Faber is handling the cases after the U.S. Judicial Panel on Multi-District Litigation agreed with Polster about sending the cases back to West Virginia for trial. Polster is overseeing the national opioid litigation.
“The court continues to believe that strategic remand of certain cases is the best way to advance resolution of various aspects of the Opiate MDL,” Polster wrote in a Jan. 6 request, adding that he “will remain as the ‘hub’ of the MDL litigation and also the locus for global settlement, while the selected transferor courts will act as ‘spokes,’ supporting this global effort.
“The hub-and-spoke model suggested above is designed to accelerate and facilitate resolution of the Opiate MDL in whole or in substantial part. The MDL court is proceeding with its self-designated tasks with this model in mind. If the JPML concludes the court’s strategy is inappropriate or the particular suggestions of remand are not well-taken, the court will need to modify this model.”
In 2019, Polster granted a motion by the plaintiffs in these cases to split their claims against AmerisourceBergen, Cardinal Health and McKesson from the others.
Then, Cabell County and Huntington filed motions to dismiss all other claims other than common law public nuisance, civil conspiracy and punitive damages against the three remaining defendants. Then, Polster sent the two cases back to West Virginia.
U.S. District Court for the Southern District of West Virginia case number 3:17-cv-01362 and 3:17-cv-01665