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Just over a year ago, arguments began in a groundbreaking trial against three of the nation's largest drug distributors. The City of Huntington, West Virginia, and Cabell County alleged that McKesson Corp., AmerisourceBergen, and Cardinal Health created a public nuisance by allowing a flood of prescription opioids to enter their communities.
It was the first of more than 3,000 federal opioid lawsuits based on the public nuisance theory to reach the trial stage. Since then, several prominent players in the pharmaceutical industry have agreed to pay out huge settlements based on their role in the opioid crisis. Huntington and Cabell County sought $2.5 billion in damages.
But this week, a federal judge held that McKesson, Amerisource Bergen, and Cardinal Health are not responsible for the havoc opioids have wreaked in West Virginia.
Huntington and Cabell County alleged that the three distributors failed to maintain controls that would have prevented the oversupply of addictive substances like Oxycodone. At trial, attorneys for McKesson argued that holding the companies liable would "force distributors to second-guess doctors' prescribing decisions."
After hearing testimony from 70 witnesses, U.S. District Judge David Faber agreed, holding that the massive surplus of opioids coming into those communities was caused by "good faith" prescription decisions by doctors, not the distributors.
"[T]here is nothing unreasonable about distributing controlled substances to fulfill legally written prescriptions," Faber wrote. He further reasoned that opioid manufacturers, not distributors, engaged in deceptive marketing campaigns that downplayed the addictive nature of these drugs.
"The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington," the opinion concludes. "And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law."
In August 2019, an Oklahoma state judge ordered Johnson & Johnson to pay $465 million to fund one year of mitigation costs related to the state's battle with opioids. However, the Oklahoma Supreme Court overturned that verdict in November 2021, which put thousands of other opioid lawsuits on unsteady footing.
The decision in Cabell County and Huntington's case is sure to make others challenging pharmaceutical companies uneasy. In fact, another trial in West Virginia against the same defendants has been put on hold in light of Faber's decision. That case involves more than 100 cities and counties.
Although they avoided liability in the West Virginia case, the three companies have not gotten off scot-free. In October 2021, they agreed to pay $75 million to settle a case brought by the Cherokee Nation.
The Sackler family, who have owned Purdue Pharma since the 1950s, offered $6 billion in February to settle numerous lawsuits from state and local governments. At first, it looked like several holdout states would not accept the offer. But, on March 3, the remaining nine attorneys general agreed to the settlement.
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