CHARLESTON – After more than 11 months, a federal judge has ruled in favor of three drug distribution companies, saying their actions did not cause the opioid epidemic in Huntington and Cabell County.
“The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington,” District Judge David A. Faber wrote in his 184-page ruling, which was issued July 4. “And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law.
“In view of the court’s findings and conclusions, the court finds that judgment should be entered in defendants’ favor.”
Faber
Faber was overseeing the bellwether federal bench trial where the City of Huntington and Cabell County filed suit against three pharmaceutical distribution companies – AmerisourceBergen, Cardinal Health and McKesson – in 2017 seeking to hold the companies accountable for their alleged part in the opioid epidemic by sending more than 540,000 opioids each month to independent and chain pharmacies – excluding hospitals and/or hospital pharmacies – located in Cabell County.
“We respect the court and the judicial system through which we have sought remedy, but my disappointment cannot be measured," Huntington Mayor Steve Williams said. "The decision today is a blow to our city and community, but we remain resilient even in the face of adversity. This case was always about holding these distributors accountable and providing our doctors, nurses, counselors, first responders and social workers with some of the resources needed to combat the opioid crisis. These companies were part of a powerful industry responsible for fueling the epidemic here in Huntington and across the country.
"We will work alongside our counsel to ensure the fight continues on behalf of so many who lost their lives and livelihoods to the opioid epidemic. The citizens of our city and county should not have to bear the principal responsibility of ensuring that an epidemic of this magnitude never occurs again.”
A two-month bench trial took place last summer, and Faber took more than 11 months to issue his ruling. The two cases are related to thousands of other lawsuits that have been filed in recent years across the nation. A bulk of those cases have been placed in Multi-District Ligitation in federal court in Ohio before Judge Dan Aaron Polster.
These two cases had been remanded to Faber for further proceedings. Cabell County and Huntington, its county seat, had accused AmerisourceBergen, Cardinal Health and McKesson of creating a public nuisance through their wholesale distribution of prescription opioids. The plaintiffs sought relief in the form of abatement of the alleged nuisance.
“Though they may disagree as to certain particulars, the parties agree that there is an opioid epidemic in the United States, as well as the City of Huntington and Cabell County,” Faber wrote. “The parties further agree that the epidemic was fueled, at least in part, by prescription opioids.
“As the MDL court described it: It is accurate to describe the opioid epidemic as a man-made plague, twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated. As this Court has previously stated, it is hard to find anyone . . . who does not have a family member, a friend, a parent of a friend, or a child of a friend who has not been affected.”
But, Faber said the plaintiffs did not prove diversion-control failures or unreasonable conduct by the defendants. He said the defendants “substantially complied with their duties under the CSA (Controlled Substances Act) to design and operate a SOM (Suspicious Order Monitoring) system and report suspicious orders.”
Huntington and Cabell County were seeking more than $2.5 billion for an abatement plan to address opioid addiction.
The co-lead attorneys from the National Prescription Opiate Litigation MDL Plaintiffs’ Executive Committee – Paul T. Farrell Jr. of Farrell & Fuller Law LLC (trial co-lead on behalf of Cabell County); Jayne Conroy of Simmons Hanly Conroy; Joe Rice of Motley Rice; and Anne McGinness Kearse of Motley Rice (trial co-lead for the City of Huntington) – also issued a statement.
“We are deeply disappointed personally and for the citizens of Cabell County and the City of Huntington," the attorneys said. "We felt the evidence that emerged from witness statements, company documents, and extensive datasets showed these defendants were responsible for creating and overseeing the infrastructure that flooded West Virginia with opioids.
"Outcome aside, our appreciation goes out to the first responders, public officials, treatment professionals, researchers, and many others who gave their testimony to bring the truth to light. We will discuss alternatives with our clients and continue to pursue justice for the people.”
Huntington was represented by Anne Kearse, Joseph Rice, Linda Singer and David Ackerman of Motley Rice and Rusty Webb of Webb Law Centre. Cabell County was represented by Paul Farrell Jr. of Farrell Law, Anthony Majestro of Powell & Majestro and Michael Woelfel of Woelfel & Woelfel.
AmerisourceBergen was represented by Gretchen Callas of Jackson Kelly and Robert Nicholas and Shannon McClure of Reed Smith. Cardinal Health was represented by Enu Mainigi, F. Lane Heard III and Ashley Hardin of Williams & Connolly. McKesson was 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)
