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A federal appeals court on Tuesday overturned a landmark ruling West Virginia Which rejected efforts by US drug distributors to be compensated for the influx of painkillers into the opioid-starved region.
Fourth US Circuit Court of Appeals RichmondVirginia ruled that a lower court judge erred when he said West Virginia’s public nuisance law did not apply to a lawsuit involving the distribution of opioids.
The Fourth Circuit wrote, “West Virginia law allows for abatement of a public nuisance, including a requirement that the defendant pay money for efforts to abate the harm caused to the public.” “West Virginia has long described commutation as an equitable measure.”
The ruling sends the case back to the U.S. District Court charleston “For further action consistent with the principles expressed in this opinion.”
Thousands of state and local governments have filed lawsuits over opioid pricing. The lawsuits relied heavily on the claim that the companies created a public nuisance by failing to monitor where the powerful prescriptions were ending up. Most of the lawsuits were settled as part of a series of nationwide deals that could be worth more than $50 billion. But there was no conclusive trend in the outcome of those who were prosecuted.
In July 2022, U.S. District Judge David Faber ruled in favor of three major U.S. drug distributors who were charged by Cabell County and the city. huntington Accused of creating a public health crisis by distributing 81 million pills in the county over eight years. AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp. were also accused of ignoring signs that Cabell County was being ravaged by drug addiction.
Faber said West Virginia’s Supreme Court The U.S. applied the public nuisance law only in the context of conduct that interferes with public property or resources. He said expanding the law to cover the marketing and sales of opioids is “inconsistent with the history and traditional perceptions of opioid abuse.”
Last year a federal appeals court referred a certified question to the state Supreme Court, asking: “Under the common law of West Virginia, can conditions caused by the distribution of a controlled substance constitute a public nuisance and, if so, what are the elements of such a public nuisance claim?”
State judges declined to respond. A 3-2 opinion in May sent the case back to federal court.
“We hold that the Supreme Court of West Virginia will not exclude as a matter of law any common law claim for public nuisance caused by the distribution of a controlled substance,” the 4th Circuit wrote Tuesday. “Therefore, we essentially conclude that the district court erred when it held that a public nuisance claim based on the distribution of opioids was legally insufficient under West Virginia law.”
During arguments before the state Supreme Court on the certiorari question earlier this year, the companies’ attorney Steve Ruby called the plaintiffs’ arguments for extending the public nuisance law to opioid makers “radical.” If allowed, he said, it would “create an avalanche of activist litigation.”
The appeals court previously noted that the West Virginia Mass Litigation Panel, which works to resolve complex cases in state court, has concluded in several cases that opioid distribution “can form the basis of a public nuisance claim under West Virginia common law.”
In his 2022 decision, Faber also said that the plaintiffs did not provide any evidence that the defendants distributed controlled substances to any entities that did not have proper registration from the U.S. Drug Enforcement Administration or state boards of pharmacy. He said the defendants also had suspect monitoring systems required under the Controlled Substances Act.
But the 4th Circuit Court on Tuesday found that the lower court “misinterpreted the distributors’ duties” under the Controlled Substances Act.
The plaintiffs sought more than $2.5 billion to be spent on opioid use prevention, treatment and education over 15 years.
In 2021, Cabell County, an Ohio River county of 93,000 residents, had 1,059 emergency responses for suspected overdoses – significantly more than in each of the previous three years – with at least 162 deaths.