US appeals court overturns West Virginia landmark opioid lawsuit decision

FILE - Signs are displayed at a tent during a health event June 26, 2021, in Charleston, W.Va. Photo by John Raby /AP

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CHARLESTON, W.Va. (AP) — A federal appeals court on Tuesday overturned a landmark decision in West Virginia that had rejected attempts by an opioid-ravaged area to be compensated by U.S. drug distributors for a influx of prescription pain pills into the region.

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The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that a lower court judge erred when he said West Virginia’s public nuisance law did not apply to the lawsuit involving the distribution of opioids.

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“West Virginia law permits abatement of a public nuisance to include a requirement that a defendant pay money to fund efforts to eliminate the resulting harm to the public,” the 4th Circuit wrote. “West Virginia has long characterized abatement as an equitable remedy.”

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The ruling sends the case back to U.S. District Court in Charleston for “further proceedings consistent with the principles expressed in this opinion.”

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Thousands of state and local governments have sued over the toll of opioids. The suits relied heavily on claims that the companies created a public nuisance by failing to monitor where the powerful prescriptions were ending up. Most of the lawsuits were settled as part of a series of nationwide deals that could be worth more than $50 billion. But there wasn’t a decisive trend in the outcomes of those that have gone to trial.

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In July 2022, U.S. District Judge David Faber ruled in favor of three major U.S. drug distributors who were accused by Cabell County and the city of Huntington of causing a public health crisis by distributing 81 million pills over eight years in the county. AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp. also were accused of ignoring the signs that Cabell County was being ravaged by addiction.

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Faber said West Virginia’s Supreme Court had only applied public nuisance law in the context of conduct that interferes with public property or resources. He said to extend the law to cover the marketing and sale of opioids “is inconsistent with the history and traditional notions of nuisance.”

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Last year the federal appeals court sent a certified question to the state Supreme Court, which states: “Under West Virginia’s common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance and, if so, what are the elements of such a public nuisance claim?”

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The state justices declined to answer. That 3-2 opinion in May returned the case to the federal appears court.

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“We hold that West Virginia’s highest court would not exclude as a matter of law any common law claim for public nuisance caused by the distribution of a controlled substance,” the 4th Circuit wrote Tuesday. “Therefore, we necessarily conclude that the district court erred when it held that a public nuisance claim based on the distribution of opioids was per se legally insufficient under West Virginia law.”