Editor’s note: This story was originally published by Mountain State Spotlight.

By Eric Eyre and Lauren Peace, Mountain State Spotlight

On Monday, May 3, the nation’s three largest drug distributors — Cardinal Health, AmerisourceBergen and McKesson — are scheduled to face a day of reckoning in a federal courtroom in Charleston. 

The companies stand accused of fueling the opioid crisis by shipping massive numbers of pain pills to West Virginia, the state with the highest drug overdose death rate in the nation. Recent data shows that the state had more fatal overdoses last year than any year on record. 

The addiction crisis — first triggered when people got hooked on easily available prescription painkillers, then switched to heroin, and now fentanyl and methamphetamine — has been costly: thousands of lives lost, families torn apart, grandparents raising children, overcrowded jails and soaring addiction treatment costs.

“After facing this crisis head on for far too long, our day in court is finally here,” said Huntington Mayor Steve Williams, who is expected to testify in the case brought against the distributors by the City of Huntington and the Cabell County Commission.

Cabell County, by far, had the worst drug overdose rate in the nation, according to a recent analysis by 24/7 Tempo, a financial news outlet. From 2015 to 2019, Cabell had 120 drug overdose deaths per 100,000 residents on average per year, six times the national rate. Of the 25 American counties with the highest overdose death rates, 12 were in West Virginia.

“We are just days away from a landmark moment for Huntington where we will demand accountability from the ‘Big Three’ drug distributors,” Williams said. “We are grateful to be able to present our case that will demonstrate the role these companies played in fueling the public health crisis our city has battled for years and years.”

How did we get here?

Local officials estimate it will take more than $2.1 billion to abate the devastation caused by the drug epidemic, and they believe the drug distributors should help pay. That’s why in 2017, the Cabell County Commission and the City of Huntington filed lawsuits against the giant distributors, seeking to recoup the costs of the opioid crisis in their communities.

The lawsuits were initially transferred to a federal judge in Cleveland, where similar suits against distributors and manufacturers were being consolidated. The judge later sent the Huntington and Cabell lawsuits back to federal court in West Virginia.

Since then, there have been repeated delays, mostly because of the coronavirus pandemic. And the distributors have tried over and over to get the lawsuits dismissed. U.S. District Judge David Faber, who is presiding over the case, has rejected those requests.

An in-person trial was expected to begin at 9 a.m. Monday, but lawyers for both sides qualified that with words like “scheduled” and “expected.” Both sides continue to negotiate toward a settlement. If they succeed, the trial would be called off and the companies would agree to pay a specific amount to end the lawsuits.

There’s some precedent for a settlement. In February 2020, two Ohio counties, Cuyahoga and Summit, reached a $260 million settlement with the three drug distributors and an opioid manufacturer on the day that trial began.
Even if the trial starts as scheduled, it could stop abruptly after days or even weeks if the two sides do reach an agreement.

Without a settlement, the trial could last four to six months. It’s a “bench trial,” meaning there won’t be a jury. Faber will hear the case and issue a final ruling himself. That’s expected to shorten the length of the proceedings.

Are opioids a public nuisance?

At the center of the lawsuits is the question of whether the drug distributors can be held responsible for creating a “public nuisance,” or a harm to the public’s health.

“A classic example of a public nuisance claim would be against a polluter,” said Jennifer Oliva, director of Seton Hall University’s Center for Health and Pharmaceutical Law. “If you have a polluter in a town and everyone is breathing toxic air or drinking bad water, the local government might step in and say we’re going to stop the polluter and abate the nuisance so that everyone can have clean water or clean air.”

In such a case, it might be relatively simple to show that the pollution caused harm to everyone in general. But in the context of the opioid crisis, Oliva said, the claim is more complicated.

“The thing about public nuisance is that it’s always been very difficult to define damages,” Oliva said. “In these [drug] cases, [the governments] are basically saying ‘here are all of the public costs’ — the Medicaid costs, fire, police, EMS — all of these things related to the opioid crisis. And then they charge that cost to the companies distributing.”

Huntington’s and Cabell County’s attorneys allege the drug distributors’ painkiller shipments (97.8 million prescription opioids delivered to Cabell County from 2006 to 2014) show the drug companies put profits over public health. They say those shipments led to a trail of addiction, ultimately costing the local governments money and forcing them to pay untold expenses amid the opioid crisis.

The distributors argue that every pain pill they shipped went to licensed pharmacies that filled prescriptions from licensed doctors. And there’s no proof that any of the shipped pills were diverted to the black market and sold to drug users, according to the companies.

The companies’ lawyers say public nuisance claims typically apply to problems like contaminated drinking water and bad odors coming from factories.

“West Virginia law has never recognized a public nuisance claim where the gist of the complaint is that a product causes personal injuries that in turn caused emotional distress or economic loss,” said F. Lane Heard, an attorney who spoke on behalf of Cardinal Health, AmerisourceBergen and McKesson at a hearing last month. “Plaintiffs are asking this court to go where the West Virginia Supreme Court has never gone.”

While there’s no precedent for this type of public nuisance claim in West Virginia, the use of the argument to go after product makers isn’t new, Oliva said.

“We first saw it used in tobacco litigation,” she said. “The states didn’t win their cases against the tobacco companies, but they got a $200 billion settlement out of it. And now state and local officials are empowered to keep trying these claims.”

But unlike the tobacco cases, Oliva said, both the drug companies and the states, counties, cities and towns challenging them have been hesitant to settle.

“I feel like the tables have turned and the defendants are not going to settle high. They feel like they have more power now and they really want to test these claims,” Oliva said.

Huntington and Cabell County, along with other local governments in West Virginia, have opted out of a tentative $26 billion national settlement with the three distributors and with one of the manufacturers of opioids, Johnson & Johnson. Cabell County’s lawyer, Paul Farrell, has said West Virginia’s portion of the “global” settlement wasn’t nearly enough. The Mountain State’s potential share has yet to be disclosed to the public.

Reach reporter Eric Eyre at ericeyre@mountainstatespotlight.org or Lauren Peace at laurenpeace@mountainstatespotlight.org.