CHARLESTON, W.Va. (AP) — A federal appeals court on Tuesday overturned a landmark decision in West Virginia that rejected the opioid-plagued region's efforts to get compensation from 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 an opioid lawsuit.
“West Virginia law permits public nuisance mitigation, including requiring a defendant to pay money to fund efforts to remedy the public nuisance,” the 4th Circuit wrote. “West Virginia has long characterized emissions reductions as an equitable remedy.”
The decision sends the case back to the U.S. District Court in Charleston for “further proceedings consistent with the principles set forth in this opinion.”
Thousands of state and local governments have filed lawsuits over opioid losses. The lawsuits relied heavily on allegations that the companies created public nuisance by failing to track where powerful prescriptions ended up. Most of the claims were settled in a series of nationwide deals that could be worth more than $50 billion. But there was no decisive trend in the results 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 that Cabell County and the city of Huntington accused of causing 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 being ravaged by drug addiction.
Faber said the West Virginia Supreme Court applied the public nuisance law only in the context of conduct that encroaches on public property or resources. He said extending the law to the marketing and sale of opioids is “inconsistent with history and traditional notions of nuisance.”
Last year, a federal appeals court sent a certified question to the state Supreme Court asking, “Under West Virginia common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance, and if so, what are the elements of such a public nuisance claim?”
State judges declined to answer. A 3-2 decision in May sent the case back to federal court.
“We hold that West Virginia's highest court will not preclude as a matter of law any common law claim for public nuisance arising from the distribution of a controlled substance,” the Fourth Circuit wrote Tuesday. “We therefore inevitably conclude that the district court erred when it held that a public nuisance claim based on the distribution of opioids is itself legally insufficient under West Virginia law.”
During arguments before the state Supreme Court earlier this year on the certified issue, Steve Ruby, an attorney for the companies, called the plaintiffs' arguments to extend the public nuisance law to opioid manufacturers “radical.” If allowed, he said, it would “cause an avalanche of litigation among activists.”
The appeals court previously noted that the West Virginia Mass Litigation Commission, which resolves complex cases in state court, has found in several cases that opioid distribution “may give rise to a public nuisance claim under West Virginia common law.”
In his 2022 decision, Faber also said the plaintiffs presented no evidence that the defendants distributed controlled substances to any entity that was not properly registered with the U.S. Drug Enforcement Administration or a state Board of Pharmacy. The defendants also had suspicious monitoring systems installed, as required by the Controlled Substances Act, he said.
However, on Tuesday, the 4th Circuit found that the lower court “misconstrued the duties of distributors” under the Controlled Substances Act.
The plaintiffs sought more than $2.5 billion to fund opioid use prevention, treatment and education over 15 years.
Cabell County, an Ohio River county of 93,000 people, had 1,059 emergency responses to suspected overdoses in 2021 — significantly more than each of the previous three years — with at least 162 deaths.
