Appeals Court Sends Cabell/Huntington Opioid Case Back To Judge

In 2017, Huntington and Cabell County filed one of the first lawsuits against opioid distributors AmeriSource Bergen, Cardinal Health and McKesson Corporation. The area has long been considered ground zero for the opioid epidemic in a state also considered one of the worst hit.  

They sued using a public nuisance statute in West Virginia law. The reasoning was the same used by the state in a separate lawsuit, that the state settled with the distributors. But Senior U.S. District Judge David Faber ruled against the local governments in 2022. 

The city and county appealed that decision to the Fourth Circuit Court of Appeals in Richmond, Virginia. 

Tuesday, the Fourth Circuit Court of Appeals ruled in favor of Huntington and Cabell County and vacated Faber’s order. 

In a written opinion, Justice Barbara Milano Keenan disagreed with the district court’s analysis. She determined that the distribution of opioids can form the basis of a public nuisance claim under West Virginia common law, and that seeking money damages would be appropriate.

A statement from Huntington Mayor Patrick Farrell said: 

“The Fourth Circuit Court of Appeals has held what the City argued and believes – that distributors of opioids have a legal duty to prevent the diversion of highly addictive opioids, and that we are able to seek to hold them accountable for the devastating harm that they have caused our city and far too many of its families. We look forward to a new day in court and the chance to apply the law to provide relief for the residents of our community.”

One of the issues was abatement or cleaning up the mess. Faber determined that all the distributors had to do, if they were liable, was to stop distributing the drugs. 

“At trial, we put an expert on who said the cost of abatement would be in excess of $2 billion,” said Anthony Majestro, counsel for Cabell County in the case. “The irony is that the day after Judge Faber ruled, the opioid distributors, who were the defendants in this case, settled with the rest of the state for the rest of the cities and counties in the state for $400 million and Cabell County and the City of Huntington didn’t get to share in that money.” 

The appeals court sent the case back to Faber. He can order a new trial, decide that he still agrees with his original order or can agree with the findings of the Fourth Circuit and find for the plaintiffs. 

The opioid distributors could also choose to settle the case, as they did with the state of West Virginia. There is no timeline for when the next steps will be taken.