Emily Rice Published

W.Va. Supreme Court Hears Arguments To Revive Opioid Litigation

A gavel rests on a wooden block. In the background is a scale representing checks and balances.
West Virginia’s highest court heard arguments in a years-long opioid case involving the City of Huntington and Cabell County against three major U.S. drug distributors.
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Last spring, the City of Huntington and Cabell County asked the West Virginia Supreme Court of Appeals to define what constitutes a public nuisance under state law.

In 2017, the city and county chose to go to trial against Cencora, Cardinal Health and McKesson pharmaceutical companies instead of joining the state’s settlement agreement with the colloquially known, “big three” drug companies.

The State of West Virginia’s case, also based on the idea that opioids created a public nuisance, yielded a billion-dollar settlement. However, it was settled outside of court. 

In a 2022 non-jury trial, U.S. District Judge David Faber ruled in favor of the companies, a ruling which the city and county appealed, leaving the Fourth U.S. Circuit Court of Appeals asking the West Virginia Supreme Court to decide if public nuisance law applies to opioid sales.

On Tuesday in Charleston, West Virginia’s highest court heard arguments for and against reviving the years-long case.

The prosecution argued West Virginia law authorizes such claims, citing legislative intent and past rulings, while the pharmaceutical companies’ counsel countered the claim would radically expand public nuisance law.

“I want to emphasize the context of this certified question, the respondents distributed 81 million opium pills into our community, into Huntington Cabell County, West Virginia, which had the primary effect…of creating a black market for dope and an increased illegal demand and consumption,” attorney for the plaintiffs, Paul Farrell said.

If the court rules that the distribution of opioids constitutes a public nuisance, then Huntington and Cabell can request an appeal.

The localities will still have to prove in an appeals case that the distributors caused harm, that the distributors’ conduct was unreasonable, and that they have requested proper abatement to remedy the damage.

“(The) plaintiff’s theory will create an avalanche of activist litigation, the history of this is a theory that’s been developed and has been promoted for 20 or 25 years by activist lawyers,” Steven Ruby, counsel for the pharmaceutical companies argued in court.

Attorneys do not expect the justices to make a ruling until the summer.