The biggest drug distributors in the U.S. were accused of swamping a West Virginia county with millions of doses of painkillers as testimony is set to begin in the first trial over the companies’ role in the opioid crisis.
McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Corp. wrongfully “sold a mountain of opioid pills into our community, fueling the opioid epidemic,” Paul Farrell, a lawyer for Cabell County, told a judge Monday in his opening statement. The county and the city of Huntington want distributors to pay $2.6 billion to beef up treatment and policing budgets strained by years of opioid overdoses and addictions.
Drug distributors, manufacturers and retailers face thousands of similar lawsuits by state and local governments nationwide over the opioid crisis in which 400,000 Americans have died in the past two decades. West Virginia has been among the hardest-hit states, with Cabell County’s overdose-death rate being more than five times the national average during the period covered by the suit, according to researchers.
Most of the suits claim the companies created a public nuisance through their marketing and supply of opioids. It’s one of the first times states and governments aimed the law at cases that don’t involve property or pollution disputes.
In the West Virginia case, the distributors argue that public-nuisance law can’t be applied to their deliveries of painkillers to local retailers over a nine-year period starting in 2005 because the opioid pills were approved by federal regulators and the supply chain was licensed by the state.
Huntington and Cabell County want U.S. District Judge David Faber, who’s hearing the case without a jury, to improperly hold the distributors responsible for causing the opioid epidemic in their areas, said Robert Nicholas, a lawyer for AmerisourceBergen.
The root of the problem is illegal drugs shipped in by “gangs and drug dealers, who’ve preyed” on the local governments for almost 20 years, Nicholas told Faber. “That continues to this day.”
Nicholas also dismissed the governments’ demand for billions of dollars to address the public-health crisis as “absurd.”
“It’s not a recovery plan,” he said. “It’s a litigation plan.”
The distributors also shouldn’t be held liable for marketing opioids since all they did was communicate to customers what types of drugs were available and the prices, said Enu Mainigi, one of Cardinal Health’s attorneys.
Unlike opioid makers such as Johnson & Johnson and Purdue Pharma LP, “distributors don’t send sales reps to doctors’ offices to persuade them to write more” painkiller prescriptions, she said in her opening statement.
Paul Schmidt, one of McKesson’s lawyers, argued the municipalities’ decision to proceed under nuisance laws still requires proof the distributors’ handling of the pills damaged their communities. “Public nuisance aren’t some kind of magic words,” he said. “They still must show the defendants caused harm.”
The trial comes as McKesson, Cardinal Health and AmerisourceBergen — along with J&J — are proposing a $26 billion global settlement of all opioid suits. The distributors would pay a combined $21 billion while J&J would put up $5 billion, according to regulatory filings. The deal has yet to be finalized.
In the only other public-nuisance suit to go to trial, a judge in 2019 ordered J&J to pay $465 million to the state of Oklahoma over its marketing of opioid painkillers. While the state had sought more than $17 billion, J&J is appealing the decision.
Corey Waller, an opioid-addiction specialist, is scheduled to testify Tuesday about the effects of synthetic opiates on the human body, followed by David Courtwright, a medical historian who’s written about the development of opioid addictions in the U.S.
The case is City of Huntington v. AmerisourceBergen, 17-cv-1362, U.S. District Court, Southern District of West Virginia (Charleston).
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