On Monday, July 4, 2022, United States District Court Judge David Faber ruled in favor of three opioid distributors – Amerisource Bergen Drug Co., Cardinal Health Inc., and McKesson Corp. – finding that they did not create an opioid epidemic or a public nuisance in Cabell County, West Virginia.
Cabell County attorney Paul Farrell made the argument that the drug companies should be found responsible for the “tsunami” of prescription pills into the community and that the companies acted in a way that was unreasonable and disregarded the public’s health and safety. The companies responded by essentially blaming the increase in prescriptions on the prescribers and poor communication.
Judge Faber recognized the impact the opioid crisis has had on communities, but that he was bound by facts and law in making his ruling, not sympathy. “The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington,” Faber notes in his ruling. “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 found that the local governments arguing the case did not prove that the three distributors failed to put “effective controls” in place against opioids being diverted for illegal uses. He also noted that the companies could not be held liable to the tune of billions of dollars in harms tied to the drugs under West Virginia state law.
Faber further noted that the public nuisance law that the government had tried to argue had only been applied to conduct that interferes with public property or resources, not the distribution or sale of a product, and that extending the meaning of public nuisance to include distribution or sale would be “inconsistent” with the “traditional notions” of a nuisance. He said that the plaintiffs “failed to show that the volume of prescription opioids distributed in Cabell/Huntington was because of unreasonable conduct on the part of the defendants.”
The lawyers for the plaintiffs expressed frustration and disappointment with the ruling, saying, “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” and that “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.”
Other Cases
Faber’s ruling is in line with similar decisions by state court judges in California and Oklahoma. However, juries in New York state court and Ohio federal court recently came to the opposite conclusion. Cases related to the opioid crisis remain active throughout the country and we will continue to keep an eye on this area for future developments.