Federal appeals court vacates decision that would have killed Huntington-Cabell opioid case in WV

A federal court ruling this week is reigniting a legal fight from the city of Huntington and Cabell County against three major drug distributors who the governments allege violated the state’s public nuisance laws through their overprescription of opioids.

On Tuesday, the federal Fourth Circuit Court of Appeals issued a ruling vacating and overturning a previous decision from U.S. District Judge David Faber in 2022, remanding the case back to Faber’s court once again.

In the decision, Senior Circuit Judge Barbara Keenan wrote that the court believes Faber “misconstrued” the reach of existing public nuisance laws and the roles of the drug distributors named in the case. 

Faber’s 2022 ruling found that the distributors — AmeriSource Bergen, Cardinal Health and McKesson — could not be held liable for the ongoing drug and overdose epidemic that has drastically harmed both Huntington and Cabell County for more than 20 years under state public nuisance laws.

In Tuesday’s decision, Keenan said that the appeals court disagrees with Faber’s ruling and several arguments made by the distributors that contributed to that ruling being reached.

“Upon review, we disagree with the district court’s analysis. Initially, we hold that under West Virginia common law, the conditions resulting from the over-distribution of opioids can constitute a public nuisance,” Keenan wrote. “We also hold that in assessing the local governments’ claim, the district court misconstrued the distributors’ duties under the [Controlled Substances Act]. This error materially affected the court’s analysis of the distributors’ conduct.”

The ongoing litigation started years ago, when Huntington and Cabell County opted out of a statewide lawsuit against opioid distributors in order to bring their own legal action in hopes of earning more money for remediation efforts. The arguments made in their case against the distributors, however, are nearly identical to those that were made on behalf of the state in its litigation. 

The state’s case proved successful. 

The localities have argued that the excessive distribution of opioids in their communities caused significant harm, spurring what is now a decades-long and still ongoing drug epidemic. According to the state Office of Drug Control Policy, at least 876 individuals in Cabell County died from overdoses involving opioids between 2015 and 2021, the highest fatal overdose rate for opioids in the state over that time.

Distributors named in the ongoing litigation allege, as they have in opioid cases across the country, that public nuisance laws do not apply when legal products are being distributed.

Cabell County and Huntington are seeking about $2.5 billion from the companies to support recovery efforts in their communities and implement a plan to decrease the impact of the crisis.

The ruling overturning Faber’s decision was based largely on how state code applied public nuisance laws. Last March, the Fourth Circuit asked the West Virginia Supreme Court of Appeals to decide whether state law recognizes conditions caused by prescription drug sales to be a public nuisance, and if so, what the elements are of such claims.

In May, the state’s highest court declined to answer that question due to “disputed factual findings and related legal conclusions resting on those factual findings.” That left the federal court to decide the question itself, leading to Tuesday’s ruling.

Keenan wrote that state law “broadly” defines what constitutes a public nuisance. Per West Virginia common law — which is law created through previous legal decisions instead of through bills enacted by the Legislature — public nuisance is defined as “an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons.”

The overprescription of opioids, Keenan continued, clearly constitutes an “act or condition” that imposes harm on the general public. As such, the case should be interpreted through that lens — as numerous other cases in West Virginia have been, both regarding opioid distribution and other nuisances.

In a statement Tuesday, the National Prescription Opiate Litigation Plaintiffs’ Executive Committee co-leads said they were “thankful for another opportunity to seek civil justice” for the harms caused by AmeriSource Bergen, Cardinal Health and McKesson.

“[T]he Fourth Circuit Court of Appeals confirmed that the devastation caused by the opioid epidemic can be addressed through the law of public nuisance, affirming our clients’ rights to hold those responsible to account for their role in flooding communities in West Virginia with opioids,” they wrote. “… There is still much work to be done, and we look forward to our return to the trial court for further proceedings.”