The Washington PostDemocracy Dies in Darkness

Judge rejects claim distributors fueled W.Va. community’s opioid crisis

A public service billboard along Interstate 64 near Charleston, W.Va., on July 20, 2017. The state consistently ranks first in the country for drug overdoses. (Michael S. Williamson/The Washington Post)

In a blow to claims that drug companies fueled the opioid crisis, a federal judge ruled Monday that the nation’s three major drug distributors did not cause a public nuisance by shipping millions of addictive pain pills to a West Virginia community that was among the hardest hit.

In a legal win for AmerisourceBergen, Cardinal Health and McKesson, Judge David A. Faber dismissed the argument made by Cabell County and its seat, Huntington, that the distributors bore responsibility for the consequences of an inundation of opioids, according to the judge’s order filed in the U.S. District Court in West Virginia.

The distributors have denied wrongdoing and have said the painkillers they shipped were prescribed by licensed doctors and filled by pharmacies. They argued they had no way of telling that those prescriptions were not legitimate and that any of the drugs may have been funneled to the black market.

The arguments by lawyers for the distributors resonated with the judge, who ruled that the plaintiffs did not prove the conduct by the companies was unreasonable, a key element to establishing a public nuisance case. He found that the conduct of the companies could not be connected to the harm suffered by the communities. Finally, he ruled that the plaintiffs failed to devise a detailed abatement plan outlining how the communities would spend any money they received if they did prevail at trial.

The increase of pills going to West Virginia was due in part, he said, to “good faith dispensing” as well as the rise in product thresholds set by the Drug Enforcement Administration.

“The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington. 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,” Faber wrote in his ruling. “In view of the court’s findings and conclusions, the court finds that judgment should be entered in defendants’ favor.”

In the end, Faber ruled that public nuisance statutes had been wrongly applied in the case.

“The extension of the law of nuisance to cover the marketing and sale of opioids is inconsistent with the history and traditional notions of nuisance,” he wrote.

The decision comes nearly a year after lawyers for the defendants and the plaintiffs rested their case in a bench trial held before the judge last summer. Following the trial, the three distributors finalized a $21 billion national deal with a vast majority of states, counties and cities to resolve most of the lawsuits against them. Communities in West Virginia were not part of that deal. Lawyers involved in the case said they were surprised by the amount of time it took Faber to hand down his decision.

Lawyers for the plaintiffs said they are considering an appeal.

“We are deeply disappointed personally and for the citizens of Cabell County and the City of Huntington," the plaintiffs’ attorneys said in a statement. “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.”

Representatives of the drug companies cheered Faber’s ruling.

“We continue to be deeply concerned about the impact that the opioid crisis is having on families and communities across our nation,” McKesson said in a statement. “McKesson maintains—and continuously enhances—strong programs designed to detect and prevent opioid diversion within the pharmaceutical supply chain. We only distribute controlled substances, including opioids, to DEA-registered and state-licensed pharmacies.”

“We applaud the Court’s ruling, which recognizes what we demonstrated in court, which is that we do not manufacture, market, or prescribe prescription medications but instead only provide a secure channel to deliver medications of all kinds from manufacturers to our thousands of hospital and pharmacy customers that dispense them to their patients based on doctor-ordered prescriptions,” Cardinal Health said in a statement.

AmerisourceBergen said in a statement: “We’re pleased with the court’s decision which struck down the notion that the distribution of FDA-approved medications to licensed and registered health care providers in Cabell County and the City of Huntington was a public nuisance.”

Before the coronavirus pandemic began, the West Virginia trial was set to be a bellwether test of a novel legal strategy in the sprawling national litigation against companies including drugmakers and pharmacies. Lawyers for Huntington and Cabell County argued that the companies shipped drugs without regard for red flags that pills could have been siphoned to the black market, leading to costly consequences for communities devastated by addiction and deaths.

While the pandemic delayed trials across the country and other lawsuits were resolved with settlements, West Virginia’s trial moved forward. During the nearly three-month bench trial in Charleston in the summer of 2021, plaintiffs argued that the companies should have been alarmed by the significant rise in drugs shipped to the Appalachian community during the height of the pill crisis.

In an eight-year span ending in 2014, there were more than 81 million prescription hydrocodone and oxycodone pills distributed in the West Virginia county, enough for 94 pills for every adult and child per year.

Attorneys representing Cabell County and Huntington sought $2.6 billion from the three companies for efforts to recover from the drug epidemic.

The judge’s decision comes after public nuisance claims were dismissed by a California state judge and the Oklahoma Supreme Court. But the argument has prevailed elsewhere: In New York State Court, a jury ruled against Teva Pharmaceuticals after the state accused the Israel-based drugmaker of engaging in misleading marketing practices. And in northern Ohio, a federal jury ruled in favor of communities arguing major retail pharmacies — CVS, Walgreens and Walmart — allowed opioids into the wrong hands without controls.

A trial in West Virginia state court concluded after the state attorney general settled in April for $99 million with Johnson & Johnson subsidiary Janssen Pharmaceutical and for $161.5 million with Teva Pharmaceuticals, AbbVie’s Allergan and others.

Paul Farrell, a West Virginia lawyer representing the communities, began his opening argument by referencing Eric Eyre’s Pulitzer Prize-winning reporting that first disclosed distributors shipped 780 million pills to the state in a six-year span.

“This newspaper series triggered a congressional investigation into pill dumping in West Virginia and has launched what has been described as the most complex and largest litigation in the history of the country,” Farrell told the judge.

The massive wave of drugs also caught the attention of the DEA, according to Joe Rannazzisi, the former head of the its Office of Diversion Control, who testified that the agency warned the distributors to take a closer look at their customers, especially “large quantities of controlled substances going downstream to pharmacies without any appropriate review, due diligence, reporting.”

“They were just shipping,” he said.

After a spike in deaths from prescription opioids, the communities argued that users turned to cheaper drugs on the street, leading to a worsening overdose and addiction problem. During the trial, Huntington Mayor Steve Williams testified that he watched a SWAT raid in 2014 of a large shipment of heroin delivered to a house in his city, realizing the gravity of the problem and fueling his sense of urgency. Now, Williams said funds are needed to help address the worsening crisis.

“I’m not looking for a money grab," he testified. “All I’m looking for is the capacity to be able to make sure that my community can heal.”

In the decade prior, 1,100 people died of opioid overdoses in Cabell County, considered an epicenter of the crisis. In 2008, more West Virginia residents died of drug overdoses than car crashes.

During the trial, Robert Nicholas, a lawyer for AmerisourceBergen, acknowledged the toll of the epidemic but said blame put on the distributors is “misplaced" and “contrived.”

“No one in Cabell County or Huntington got a prescription for an opioid pain medicine without a doctor,” Nicholas said.

Attorneys for the county and city presented evidence that executives made light of the public health crisis in emails. They questioned AmerisourceBergen executive Chris Zimmerman about a parody song about “pillbillies” addicted to OxyContin when he testified in May. Public outrage over the news of the email spurred death threats, according to the company’s lawyers.

“I shouldn’t have sent the email,” testified Zimmerman, the company’s senior vice president and head of investigations. But he added that the exchange was cherry-picked and that the corporate culture at AmerisourceBergen was the “highest caliber.”

The father of an 18-year-old who died of an opioid overdose in 2001 decried the verdict in a message to The Washington Post.

“NO Justice,” Ed Bisch wrote.