Cabell-Huntington Opioid Lawsuit Continues On

Money from the lawsuit against opioid distributors AmeriSource Bergen, Cardinal Health and McKesson Corporation is already being distributed  to cities and counties around the state by the West Virginia First Foundation. 

But Huntington and Cabell County, often considered ground zero for the opioid epidemic, are still waiting. They filed a similar but separate lawsuit in federal court and Senior U.S. District Judge David Faber ruled against them in 2022. The federal Fourth Circuit Court of Appeals asked the state Supreme Court to define a public nuisance under West Virginia law in March of 2024 following an appeal. The majority of the state court declined to take any action. 

Eric Douglas spoke with Anthony Majestro, one of the lead attorneys on the case, to sort it all out. 

This interview has been lightly edited for clarity. 

Douglas: Explain what the Fourth Circuit Court of Appeals asked the state Supreme Court to do.

Majestro: Backing up a little bit, pending before the Fourth Circuit is our appeal of the judgment against us based on the trial that happened in Charleston a couple years ago. We lost that case and appealed it to the Fourth Circuit in Richmond. One of the issues involved in that appeal, it revolves around the viability of a claim for public nuisance arising out of the sale of controlled substances. And so all of the state courts in West Virginia had previously found that claim existed, and that was contrary to what Judge Faber found in his judgment. And so the Fourth Circuit asked the Supreme Court who was right. And so that’s essentially what the certified question was whether or not a claim for public nuisance could be brought arising out of the sale of controlled substances. 

Douglas: To clarify something, you said all this, all the state courts had made that decision. What do you mean by that?

Majestro: Litigation over the opioid litigation is pending in several different places. There were cases brought in state court in West Virginia in front of our state court judges. Those cases all settled so we didn’t get any decisions from the Supreme Court arising out of them. In addition, there were cases pending in federal court, including the Cabell-Huntington trial that happened in front of Judge Faber. The rulings in the state court were uniformly supportive of our claims.

Douglas: Any guess as to why they refused to decide on this?

Majestro: We’re disappointed that they did. We think the law was clear. We didn’t think the Fourth Circuit needed to even ask them that the law was that clear, but unfortunately anything I could do we would be guessing. All we know is what they said in the decision, and they thought there were too many facts in dispute. And so now what that means is that the Fourth Circuit has the green light to decide the issue on its own. And we think, based on what the court said in the certification order, that we feel hopeful that they will resolve the case in our favor. 

Douglas: That puts it back to the Fourth Circuit (and) they’re free to decide whichever way they want.

Majestro: Yeah, that’s exactly right. In garden variety cases that involves state law that get appealed in federal court the the Court of Appeals, does its best to figure out what state law is, and so that’s what they’re going to have to do.

Douglas: Can you read anything into the Chief Justice dissenting on this opinion?

Majestro: It’s interesting in this case that we had two judges that replaced two of the justices, so that creates interesting dynamics, and those judges split. Judge [Tera] Salango concurred with the Chief Justice. I would say that we believe that the Chief Justice got it right, both in terms of the need to answer the certified question, and in terms of what his proposed answer was that was essentially both in line with our positions in the case. 

Hopefully when the Fourth Circuit gets it back, they’ll look at Justice Wooten’s version of what he thinks public nuisance law is in West Virginia, which is consistent with all of the previous trial court opinions, and they’ll rule the same way.

Douglas: Huntington and Cabell County went on their own instead of joining the state sponsored lawsuit or the state organized lawsuit. What was the reasoning for that to begin with?

Majestro: We filed these cases in federal court, and in fact, Huntington and Cabell was the very first one that myself and my co-counsel, Paul Ferrell, filed. So because they were in federal court, they got sent to the multidistrict litigation in Cleveland. And then in that case, Judge Polster, who managed that case, he couldn’t try cases that were outside of northern Ohio. So he wanted a couple of what we call bellwether cases, and he picked Cabell and Huntington as one of the bellwethers. Which meant it got sent back to West Virginia for trial. 

The thinking was, we had a good federal judge and we believed the law was favorable to us. We wanted to proceed on that. Everybody can again, have 20/20 hindsight on whether or not that was a good decision or bad decision. I would say the opera is not over on it. And so we’ll see in the end, we’ll see how it all turned out. I would point out that the work we did on that case provided substantial benefit to all of the other cities and counties in West Virginia, because we did not have to repeat that work in state court, and it led literally to a $400 million settlement the day after Judge Faber ruled against us for the rest of the state. You can talk about whether it was a good idea or bad idea, and I think people are just guessing too, especially given that we don’t know how this story ends. 

Douglas: That was interesting that the state suit was effectively the same grounds and based on what you had done. That was a settlement, right? 

Majestro: Definitely the week before the mass litigation panel entered summary judgment orders denying the same defendants motions to have the case dismissed, and the legal basis for that order, that order and the challenge was the same issue that was in front of Judge Faber that we did have that decision and several other preliminary decisions, both in the distributor case and in the cases against the manufacturers and pharmacies where the state court found the existence of the public nuisance claim, and we believe the judgments in those decisions got it right. We’re hopeful that the three Fourth Circuit judges will agree with us. 

Douglas: If the Fourth Circuit doesn’t rule in your favor, do you appeal to the Supreme Court?

Majestro: That’s a decision we would make in consultation with the client. I will point out that, especially on issues of state law, the U.S. Supreme Court  is reluctant to take those cases. There are some federal issues that might interest the U.S. Supreme Court, but I think that generally you don’t have state tort suits in the U.S. Supreme Court. And that is also a decision that the distributors would have to make if we went.

Douglas: Whether they would appeal it, right? 

Majestro: Yeah, they would have that right, that same choice.