Oral arguments regarding local opioid litigation to be heard by WV Supreme Court

The city and county’s case is against drugmakers AmerisourceBergen, Cardinal Health and McKesson.

The U.S. Circuit Court of Appeals for the Fourth District in Richmond, Virginia, sent a certified question to the West Virginia Supreme Court on March 18, 2024, asking: “Under West Virginia’s common law, 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?�

Paul Farrell Jr., co-lead council for the city and county and co-lead of the national multidistrict litigation, said the hearing is a critically important stage for the city and county in the opioid epidemic litigation.

“We have to survive this step,� Farrell said. “If we survive this step then there are two additional steps that we have to take, but this is the step in front of us and right now the most important step.�

The city and county’s counsel will give an oral argument in front of the state Supreme Court on the certified question. The court will then determine whether the federal court was correct in its legal ruling, or if the state court, which was in favor of the city and county, was correct in its legal ruling, Farrell said.

If the court rules in the affirmative on the state law following the oral argument, the case will then go to the U.S. Court of Appeals for the Fourth Circuit to issue a ruling on the federal law, then back to the federal judge to apply state law and federal law to the city and county’s public nuisance complaint, Farrell said. If the court rules in the negative, the case will be over.

“The entire case is premised upon (the) public nuisance doctrine, which is under West Virginia common law and so the federal judge made a legal ruling that there is no cause of action,� Farrell said. “We have to get that reversed in the West Virginia Supreme Court. If we don’t get that reversed, the case is over.�

Huntington and Cabell County were among the first entities to file suit against the opioid manufacturers, distributors and retail pharmacies and the first federal case to go to trial against the so-called “Big 3� distributors.

“Our litigation spawned cases all across the country against Purdue Pharma, manufacturers, distributers and the chain store pharmacies, so all of those cases across the country got consolidated up in the federal courtroom in Cleveland, Ohio, and I was named the co-lead of the national litigation and we selected what is called bellwether cases, initial trial cases,� Farrell said.

During the eight-year legal battle, Farrell said the case has had varied opinions between state court and federal court.

“We prevailed on those legal issues in state court against the same defendants and so there were competing opinions on the legal issues,� Farrell said. “The federal court took one position and the state courts took a different position. Federal court ruled against the city’s and counties and the state courts ruled in favor of the cities and counties — creating a conflict, so in the federal court case the judge ruled against us.�

The Supreme Court will decide this issue after a jury recently found two drug distributors, including McKesson, caused the opioid epidemic in Baltimore, Maryland, and awarded the City of Baltimore $266 million. Overall, opioid defendants have paid over $70 billion through settlements in the national multidistrict litigation for their role in causing the opioid epidemic.

Farrell said the $70 billion reference is for the settlements across the country based on the same legal theory. The City of Baltimore case is the same legal theory and this particular case with the defendants, he said.

“These defendants have paid $400 million to settle 54 counties worth of cases so the only issue is whether what happens to this last county, so we believe we are in the right, that there is a legal cause of action for public nuisance,� Farrell said.

Cabell County Commission President Liza Caldwell said the commission is looking forward to the opportunity of having its case heard by the West Virginia Supreme Court of Appeals.

Farrell said he expects the opinion from the West Virginia Supreme Court to come out sometime in the spring or summer. If the city and county can move forward with the litigation, the case will be back in front of the Fourth Circuit in the fall, he said.