CHARLESTON – As the trial date looms next week, a federal judge again has denied motions for summary judgment from the defendant opioid distributors.
On April 29, Senior U.S. District Judge David A. Faber denied a motion for summary judgment on the grounds that the plaintiff municipalities can't prove the "fault" element of their public nuisance claim. That motion had been filed by the defendant companies AmerisourceBergen, Cardinal Health and McKesson. The plaintiffs are the Cabell County Commission and the City of Huntington.
"Plaintiffs proceed in this case on a single cause of action: public nuisance," Faber wrote. "This motion argues that plaintiffs' claim fails on what defendants term the 'fault' element. ... Without culpable conduct meeting one of these standards, say defendants, there is no public nuisance under West Virginia law.
Majestro
"Defendants further say that all culpability paths are foreclosed here: Intentional acts, because there is no evidence that defendants 'intended to cause the opioid crisis or knew that their alleged conduct would case a crisis of opioid use;' negligence and recklessness, because the violations of state and federal law that plaintiffs allege either did not occur or cannot form the basis for claims of negligence or recklessness."
The plaintiffs say the premise that they must prove intentional, reckless or negligent conduct is incorrect.
"Plaintiff acknowledges that they have to prove the unreasonableness of the alleged conduct, but suggest that this element is broader than defendant's 'fault' element and includes an additional category: unlawful conduct," Faber wrote. "The court agrees with plaintiffs that because defendants' motion does not establish the reasonableness of defendants' conduct, the motion should be denied."
On April 28, Faber denied a motion for summary judgment regarding nuisance filed by the defendant companies. He also denied their motion for summary judgment on proximate causation grounds and McKesson's motion for dismissal on derivative sovereign immunity grounds. He also denied a motion filed by Cabell County and Huntington holding that Cardinal Health did not comply with its duties under the Controlled Substances Act.
Attorneys representing Cabell County and Huntington declined further comment. But a source familiar with the plaintiff's attorneys called the latest orders the last legal impediments to the start of the trial scheduled for May 3. The source also called it a huge relief for the plaintiff's side.
Also, on April 26, Faber denied the defendants' motion for summary judgment regarding abatement, saying he isn’t ready to rule that Cabell County and the City of Huntington can’t seek damages for their public nuisance claims against AmerisourceBergen, Cardinal Health and McKesson.
In his April 26 order, Faber said it is unlikely West Virginia law would keep Cabell County from seeking remediation funding. He said the law gives the county the right to take actions to address public health hazards and that federal court precedent gives municipalities the right to pursue nuisance claims. The defendants weren’t seeking summary judgment against the City of Huntington.
Last month, Faber denied the defendants’ motion for summary judgment.
The city and county blame the three companies for helping fueling the opioid crisis. The summary judgment motion was heard February 9.
“We are pleased that the court recognized the viability of our claims and look forward to starting trial in May,” Tony Majestro, one of the attorneys representing the plaintiffs, told The West Virginia Record earlier this month.
Another plaintiff’s attorney says Cabell County and Huntington deserve their day in court.
“During the May trial for the City of Huntington and Cabell County, we will demonstrate how the defendants, alongside other companies in the supply chain, created this ongoing crisis,” Paul Farrell told MetroNews earlier this month. “Drug distributors ignored their obligations under the Controlled Substance Act and actively pumped pills into American communities like Cabell County and Huntington.
“The repeated attempts by the ‘Big Three’ distributors to delay their courtroom reckoning will not deter these communities from pursuing the resources they need now to combat the opioid crisis that has only worsened amid the COVID-19 pandemic.”
The defendant companies argued that West Virginia public nuisance laws have only included cases using public property or resources instead of a product. They maintain the claims against them is a private matter, not a public one.
Faber disagreed, and he used a few examples.
“Because the overall businesses of practicing dentistry, running a restaurant, and operating a lawn maintenance company are lawful, illegal acts that further those businesses would be shielded from the law of public nuisance regardless of the threat to public health,” he wrote.
In the federal case, Huntington is represented by Anne Kearse, Joseph Rice, Linda Singer and David Ackerman of Motley Rice and Rusty Webb of Webb Law Centre. Cabell County is represented by Paul Farrell Jr. of Farrell Law, Anthony Majestro of Powell & Majestro and Michael Woelfel of Woelfel & Woelfel.
AmerisourceBergen is represented by Gretchen Callas of Jackson Kelly and Robert Nicholas and Shannon McClure of Reed Smith. Cardinal Health is represented by Enu Mainigi, F. Lane Heard III and Ashley Hardin of Williams & Connolly. McKesson is represented by Mark Lynch, Christian Pistilli, Laura Wu and Megan Crowley of Covington & Burling.
U.S. District Court for the Southern District of West Virginia case numbers 3:17-cv-01362 (Huntington) and 3:17-cv-01665 (Cabell)