Placeholder while article actions are loading
In a blow to allegations that pharmaceutical companies fueled the opioid crisis, a federal judge ruled Monday that the nation’s three largest drug distributors did not cause public concern by sending millions of addictive pills to a West Virginia community that was among the most affected.
In a court victory for AmerisourceBergen, Cardinal Health and McKesson, Judge David A. Faber rejected an argument made by Cabell County and its seat, Huntington, that distributors are responsible for the consequences of the opioid flood, according to the judge’s order filed in the U.S. District Court of West Virginia.
The distributors have denied wrongdoing and said the painkillers they ship are prescribed by licensed doctors and supplied by pharmacies. They argued that they had no way of telling that these prescriptions were not legitimate and that any of the drugs may have been directed to the black market.
The distributors’ lawyers’ arguments resonated with the judge, who ruled that the plaintiffs had failed to prove that the companies’ conduct was unreasonable, a key element in establishing a public nuisance case. It found that the behavior of the companies could not be linked to the harms suffered by the communities. Finally, he ruled that the plaintiffs had not produced a detailed emissions reduction plan outlining how the communities would spend the money they received if they prevailed in the lawsuit.
The increase in pills going into West Virginia is due in part, he said, to “good faith dispensing” as well as the Drug Enforcement Administration raising thresholds for products.
“The opioid crisis has taken a significant 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 on the basis of sympathy, but on the facts and the law,” Faber wrote in his decision. “In light of the court’s findings and conclusions, the court finds that judgment should be entered in favor of the defendants.”
Ultimately, Faber ruled that disorderly conduct laws were misapplied in the case.
“Extending the law of nuisance to cover the marketing and sale of opioids runs counter to history and traditional notions of nuisance,” he wrote.
The decision comes nearly a year after attorneys for the defendants and plaintiffs dropped their case in a trial held before the judge last summer. After the trial, the three distributors finalized a $21 billion national settlement with a vast majority of states, counties and cities to resolve most of the lawsuits against them. West Virginia communities were not part of that deal. Lawyers involved in the case said they were surprised by the time it took Faber to issue his decision.
Lawyers for the plaintiffs said they were considering an appeal.
“We are deeply disappointed personally and for the citizens of Cabell County and the City of Huntington,” attorneys for the plaintiffs said in a statement. responsible for creating and overseeing the infrastructure that flooded West Virginia with opioids.
Representatives of pharmaceutical companies welcomed Faber’s decision.
“We continue to be deeply concerned about the impact the opioid crisis is having on families and communities across our nation,” McKesson said in a statement. “McKesson maintains — and continually improves — robust programs designed to detect and prevent the diversion of opioids in the pharmaceutical supply chain. We only distribute controlled substances, including opioids, to DEA-registered and state-licensed pharmacies.”
“We welcome the Court’s decision, which recognizes what we have demonstrated in court, namely that we do not manufacture, market or prescribe prescription drugs, but instead merely provide a secure channel for the supply of drugs of all kinds from manufacturers to our thousands of hospital and pharmacy customers who dispense them to their patients based on prescriptions,” Cardinal Health said in a statement.
AmerisourceBergen said in a statement, “We are pleased with the court’s decision, which rejected the notion that the distribution of FDA-approved drugs to licensed and registered health care providers in Cabell County and the Town of Huntington was a public nuisance.”
Before the coronavirus pandemic began, the West Virginia trial was supposed to be a test of a new legal strategy in a growing nationwide lawsuit against companies, including drugmakers and pharmacies. Attorneys for Huntington and Cabell County argued that the companies supplied the drugs without heeding red flags that the pills could be siphoned off on the black market, leading to costly consequences for communities ravaged by addiction and death.
While the pandemic has delayed trials across the country and other lawsuits have been settled with settlements, the West Virginia trial has moved forward. During the nearly three-month trial in Charleston in the summer of 2021, the plaintiffs argued that the companies should have been alarmed by the significant increase in drugs shipped to the Appalachian community during the peak of the pill crisis.
Over an eight-year period ending in 2014, more than 81 million prescription hydrocodone and oxycodone pills were distributed in West Virginia County, enough for 94 pills for every adult and child annually.
Attorneys representing Cabell and Huntington counties have sought $2.6 billion from the three companies for efforts to recover from the drug epidemic.
The judge’s ruling comes after nuisance claims were dismissed by a California state judge and the Oklahoma Supreme Court. But the argument 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 that argued that major retail pharmacies — CVS, Walgreens and Walmart — let opioids fall into the wrong hands without oversight.
The trial in West Virginia state court then ended 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 attorney representing the communities, began his opening argument by citing a Pulitzer Prize-winning report by Eric Ayer that the first distributors discovered shipped 780 million pills to the state over a six-year period.
“This newspaper series sparked a congressional investigation into the dumping of pills in West Virginia and launched what has been described as the most complex and largest legal case in the history of the country,” Farrell told the judge.
The massive wave of drugs also caught the DEA’s attention, according to Joe Ranazzisi, former head of the diversion control office, who testified that the agency warned distributors to keep a closer eye on their customers, especially “the large amounts of controlled substances going down the drain.” chain to pharmacies without proper review, due diligence, reporting.
“They were just shipping,” he said.
After a spike in prescription opioid deaths, communities say users have turned to cheaper street drugs, exacerbating the problem of overdose and addiction. During the trial, Huntington Mayor Steve Williams testified that he watched a SWAT raid in 2014 on a large shipment of heroin delivered to a house in his town, realizing the seriousness of the problem and fueling his sense of urgency. Now Williams said funds are needed to deal with 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 my community can heal.”
In the previous decade, 1,100 people died of opioid overdoses in Cabell County, considered the epicenter of the crisis. In 2008, more West Virginians died from drug overdoses than from car crashes.
During the trial, Robert Nichols, an attorney for AmerisourceBergen, acknowledged the damage from the outbreak but said the blame placed on the distributors was “misplaced” and “fabricated.”
“No one in Cabell or Huntington County has received a prescription for an opioid pain medication without a doctor,” Nicholas said.
Attorneys for the county and city presented evidence that executives downplayed the public health crisis in emails. They were questioning AmerisourceBergen CEO Chris Zimmerman about a parody song about OxyContin “pill addicts” when he testified in May. Public outrage over news of the email prompted 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 accurate and that the corporate culture at AmerisourceBergen was “of the highest caliber.”
The father of an 18-year-old who died of an opiate overdose in 2001 took to Twitter to condemn the sentence.
“There is NO justice,” wrote Ed Bish.
Add Comment