HUNTINGTON — Whether or not Huntington and Cabell County will argue their allegations blaming several drug firms for contributing to the opioid epidemic in the area in front of a judge or jury rests on the dismissal of a request for punitive damages, according to court filings made last week.
The lawsuits filed by the Cabell County Commission and city of Huntington in 2017 argue that the “Big Three” defendants — AmerisourceBergen Drug Corp., McKesson and Cardinal Health — breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the state over the past several years — a duty the lawsuits claim companies have under the Controlled Substances Act of 1970.
The lawsuits seek payment to help remedy the problems drug dependency allegedly has caused in the area.
Although they were among the first to file, the local cases were sent to a Cleveland federal court for arguments and pretrial motions to be settled ahead of trial. They were recently sent back to Charleston-based District Judge David A. Faber.
After a hearing last month, Faber ordered the parties write the 10-page motions after the governments asked for a bench trial, to be decided by the judge, and the defendants said they wanted a jury trial.
The defendants also asked for 18 additional months for trial prep, while the governments’ attorneys said they would be ready to go by March.
In their motions filed last week, the defendants argued that the 7th Amendment gives them a right to a jury trial. They also pointed to the plaintiffs’ initial complaint in which they asked for a jury trial, a request the defendants said cannot be withdrawn.
They also said traditionally, under English law, a public nuisance claim that sought punitive damages was a question answered only by a jury, not a judge.
To speed up the process, and to get a bench trial, the plaintiffs’ attorneys offered to dismiss any punitive damage claims in the lawsuit if the defense would agree to the bench trial.
If those claims are dismissed — by Faber or the defense’s agreement — the trial can be conducted as a court of equity and would not require a jury trial, eliminating the defense’s complaints, the attorneys said.
Prior to last week’s filings, Cabell County’s attorney, Paul T. Farrell, filed notice that he had left the law firm of Greene, Ketchum, Farrell, Bailey & Tweel, where he had been employed for 15 years. He now works for his own law firm, Farrell Law, in Huntington.
In an interview with the West Virginia Record, Farrell said his dedication to only working hundreds of opioid cases the past few years had put a strain on the law firm, although he left with no ill will between him or his fellow attorneys.
Huntington is represented by Charleston attorney Charles “Rusty” Webb.
The attorneys are expected to return to Faber’s courtroom March 5, at which time he is expected to set a trial date. He could issue an opinion regarding the jury issue prior to that, however.