Judge rejects claim by W.Va. community that nation's three largest opioid distributors should pay for public nuisance

A federal judge has rejected claims by Cabell County, West Virginia and the county seat of Huntington that the nation's three opioid distributors caused a public nuisance by sending millions of pain pills into the community and should pay for the damage they caused.

U.S. District Judge David Faber said "The opioid crisis has taken a considerable toll" on the county, 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 tried the case 11 months ago after the three companies, AmerisourceBergen, Cardinal Health and McKesson Corp., waived their right to a jury trial, Courtney Hessler reports for The Herald-Dispatch in Huntington. 

Cabell County (Wikipedia map)

"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," Meryl Kornfield, Scott Higham and Sari Horwitz report for The Washington Post. "Lawyers for the plaintiffs said they are considering an appeal."

Hessler reports, "Faber said the city and county failed to prove the defendants did not maintain effective controls against diversion of the opioids into the illicit market," or that they lacked due diligence in stopping suspicious orders. "It was good-faith prescribing that drove the increased volume of prescription opioids, he ruled."

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

The plaintiffs showed that company officials "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," the Post reports. Zimmerman testified that he shouldn't have sent the email, "but he added that the exchange was cherry-picked and that the corporate culture at AmerisourceBergen was the 'highest caliber'."

Mountain State Spotlight reports, "Another trial, with dozens of West Virginia cities, towns and counties suing the same three big drug distributors, is scheduled to begin Tuesday in Charleston. Although this trial is in state court and being handled by Mercer Circuit Judge Derek Swope, many of the other participants, including the lawyers, are the same."

UPDATE, July 12: MSS's Ian Karbal explains how the drug distributors prevailed at the trial.