A federal judge in West Virginia, ground zero of the opioid epidemic, ruled that AmerisourceBergen, Cardinal Health and McKesson are not to blame for the epidemic that has led to more than 10% of the population in Huntington and Cabello County having an opioid addiction as of 2017.
The case — City of Huntington v. AmerisourceBergen et al. in the Southern District of West Virginia — is the first bellwether trial that’s part of the National Prescription Opiate Multidistrict Litigation involving thousands of cases relating to the opioid crisis, and will give a window into how similar cases may be handled in other counties in the MDL. AmerisourceBergen, Cardinal Health and McKesson are major drug distributors.
“The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington. 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,” West Virginia District Judge David A. Faber wrote.
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Between 2006 and 2014, the three companies distributed more than 50 million dosage units of oxycodone and hydrocodone to retail pharmacies in West Virginia’s Cabell County and the City of Huntington. And from 2001 to 2017, the fatal overdose rate in Cabell County increased from 16.6 to 213.9 per 100,000. However, there is not enough evidence to prove causation, the judge wrote.
A bench trial in the case concluded last July and 70 witnesses testified. Despite testimony from historians, physicians, and public health experts, the judge found that the Appalachian county and city failed to prove that the drug distributors had improper safeguards against opioids being obtained and sold illegally and failed to prove there was an inadequate process to monitor suspicious orders.
The judge said that “there is nothing unreasonable about distributing controlled substances to fulfill legally written prescriptions.”
The Mayor of Huntington, Steve Williams, said in a statement, “My disappointment cannot be measured. The decision today is a blow to our city and community, but we remain resilient even in the face of adversity. This case was always about holding these distributors accountable and providing our doctors, nurses, counselors, first responders and social workers with some of the resources needed to combat the opioid crisis.”
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The plaintiff’s counsel together issued a statement, “We are deeply disappointed personally and for the citizens of Cabell County and the City of Huntington. We felt the evidence that emerged from witness statements, company documents, and extensive datasets showed these defendants were responsible for creating and overseeing the infrastructure that flooded West Virginia with opioids.”
Cabell County and the city of Huntington were proposing a 15-year abatement plan as a form of relief, which would cost around $2.5 billion. The abatement plan would include providing services and programs to treat opioid abuse, such as creating collection sites for unused pills but did not include any new licensing requirements for distributors.
However, the judge ruled that West Virginia law doesn’t support abatement damages and also that the abatement plan “addresses harms caused by opioid abuse and addiction—it does not address defendants’ conduct.”
A spokesperson for Cardinal Health applauded the Court’s ruling, “which recognizes what we demonstrated in court, which is that we do not manufacture, market, or prescribe prescription medications but instead only provide a secure channel to deliver medications of all kinds from manufacturers to our thousands of hospital and pharmacy customers that dispense them to their patients based on doctor-ordered prescriptions.”
A spokesperson for AmerisourceBergen said, “We’re pleased with the court’s decision which struck down the notion that the distribution of FDA approved medications to licensed and registered health care providers in Cabell County and the City of Huntington was a public nuisance.”
The statement added that pharmaceutical distributors like AmerisourceBergen have been asked to “walk a legal and ethical tightrope” between providing access to medicine and acting to prevent abuse of controlled substances.
McKesson did not immediately respond to request for comment.
In 2019, a pair of cases in the same multidistrict litigation surrounding the opioid epidemic resulted in a different outcome. Teva, Cardinal Health, AmerisourceBergen and McKesson reached a $260 million settlement with two Ohio counties that alleged the manufacturers and distributors were responsible for fueling the opioid crisis.
