Federal judge rules in opioid trial against hard-hit West Virginia community
The distributors have denied wrongdoing, saying the painkillers they supplied were prescribed by licensed doctors and bottled by pharmacies. They argued they had no way of saying that those prescriptions weren’t legitimate and that one of the drugs might have been smuggled onto the black market.
The distributors’ attorneys’ arguments agreed with the judge, who ruled that the plaintiffs had failed to prove the companies’ conduct was unreasonable, a key element in establishing a public harassment case. He noted that the behavior of the companies could not be linked to the damage suffered by the communities. Eventually, he ruled that the plaintiffs had failed to develop a detailed mitigation plan that outlined how the communities would spend the money received if they prevailed in court.
The increase in pills shipped to West Virginia is due in part to “good faith distribution” as well as increases in product thresholds set by the Drug Enforcement Administration.
“The opioid crisis has taken a significant toll on the citizens of Cabell County and the city of Huntington. And although there is a natural tendency to assign blame in such cases, they must not be decided on sympathy, but on facts and justice,” wrote Faber in his ruling. “In light of the Court’s findings and conclusions, the Court notes that the judgment should be returned in favor of the defendants.”
In the end, Faber ruled that the misdemeanor laws had been misapplied in the case.
“The expansion of the Harassment Act to include the marketing and sale of opioids goes against history and traditional notions of harassment,” he wrote.
The decision comes nearly a year after attorneys for the defendants and the plaintiffs put their case to rest in a bank trial before the judge last summer. After the trial, the three distributors won a $21 billion national deal with a large majority of states, counties and cities to settle most of the lawsuits against them. West Virginia communities were not part of this deal. Lawyers involved in the case said they were surprised at how long it took Faber to make his decision.
Attorneys 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,” attorneys for the plaintiffs said in a statement responsible for creating and overseeing the infrastructure that inundated West Virginia with opioids.
Representatives of the pharmaceutical companies cheered Faber’s verdict.
“We remain deeply concerned about the impact the opioid crisis is having on families and communities across our country,” McKesson said in a statement. “McKesson maintains – and continually improves – strong programs designed to detect and prevent opioid diversion within the pharmaceutical supply chain. We only sell controlled substances, including opioids, to DEA-registered and state-licensed pharmacies.”
“We welcome the court’s ruling, which recognizes what we have proven in court, which is that we do not manufacture, market or prescribe prescription drugs, but instead only provide a secure channel to deliver drugs of all types from manufacturers to our thousands of hospitals and communities To supply hospitals with pharmacy customers who dispense them to their patients based on doctor’s prescriptions,” Cardinal Health said in a statement.
AmerisourceBergen said in a statement, “We are pleased with the court’s decision disproving the notion that the distribution of FDA-approved drugs to licensed and registered healthcare providers in Cabell County and the city of Huntington was a public nuisance.”
Before the onset of the coronavirus pandemic, the West Virginia trial was intended to be a prime example of a novel legal strategy in the sprawling national litigation against companies like drugmakers and pharmacies. Huntington and Cabell County attorneys argued that the companies shipped drugs regardless of red flags that pills could have made their way onto the black market, with costly consequences for communities devastated by addiction and death.
While the pandemic has delayed trials across the country and settled other lawsuits, the West Virginia trial is moving forward. During the nearly three-month bank trial in Charleston in the summer of 2021, plaintiffs argued that the companies should be alarmed by the significant surge in drugs being shipped to the Appalachian community during the height of the pill crisis.
In 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 each adult and child per year.
Lawyers representing Cabell County and Huntington are seeking $2.6 billion from the three companies for efforts to recover from the drug epidemic.
The judge’s decision comes after claims of public harassment by a. were turned away California State Judge and the Oklahoma Supreme Court. But elsewhere the argument has caught on: In New York state court, a jury ruled against Teva Pharmaceuticals after the state accused the Israel-based drugmaker of engaging in deceptive marketing practices. And in northern Ohio, a federal jury ruled in favor of communities arguing that big retail pharmacies — CVS, Walgreens, and Walmart — were letting opioids fall into the wrong hands without controls.
After that, a trial ended in West Virginia state court The attorney general in April settled over $99 million with Johnson & Johnson subsidiary Janssen Pharmaceutical and over $161.5 million with Teva Pharmaceuticals, AbbVie’s Allergan and others.
Paul Farrell, a West Virginia attorney representing the communities, began his opening remarks by referring to Eric Eyre’s Pulitzer Prize-winning report, which first announced that retailers had sold $780 million over a six-year period delivered pills to the state.
“This newspaper series sparked a congressional investigation into pill dumping in West Virginia and initiated what has been described as the most complex and largest litigation in the history of the country,” Farrell told the judge.
The massive drug wave also caught the attention of the DEA, according to Joe Rannazzisi, former head of the Office of Diversion Control, who testified that the agency warned dealers to scrutinize their customers, particularly “large quantities of controlled substances that are passed on to pharmacies without proper verification, due diligence, reporting.”
“They just shipped,” he said.
After a spike in prescription opioid deaths, communities argued that users were turning to cheaper drugs on the streets, leading to a worsening of overdose and the addiction problem. During the trial, Huntington Mayor Steve Williams testified that he witnessed a 2014 SWAT raid of a large shipment of heroin at a home in his city, which recognized the seriousness of the problem and heightened his sense of urgency. Now Williams said funds are needed to deal with the deepening crisis.
“I’m not looking for a money robbery,” he testified. “All I’m looking for is the ability to make sure my community can heal.”
In the previous decade, 1,100 people died from opioid overdoses in Cabell County, believed to be the epicenter of the crisis. In 2008, more West Virginians died from drug overdoses than from car accidents.
During the trial, Robert Nicholas, a lawyer for AmerisourceBergen, acknowledged the epidemic’s toll but said the blame placed on the traders was “misplaced” and “made up”.
“No one in Cabell County or Huntington could get a prescription for an opioid pain reliever without a doctor,” Nicholas said.
County and city attorneys presented evidence that executives were taking the public health crisis lightly in emails. They were questioning AmerisourceBergen CEO Chris Zimmerman about a parody song about “pillbillies” addicted to OxyContin when he was testifying in May. Public outrage at news of the email led to death threats, according to the company’s lawyers.
“I shouldn’t have sent the email,” said Zimmerman, the company’s senior vice president and chief investigator. But he added that the exchange was raisin-picked and that the corporate culture at AmerisourceBergen is “the highest caliber.”
The father of an 18-year-old who died of an opioid overdose in 2001 took to Twitter to unravel the verdict.
“NO Justice,” Ed Bischof wrote.