CHARLESTON — Another court is moving forward with opioid lawsuits in West Virginia, despite a federal judge’s ruling last week that opioid distributors are not legally responsible for the drug crisis.
West Virginia Mass Litigation Panel presiding Judges Alan D. Moat and Derek C. Swope issued an order Tuesday moving forward opioid cases filed against some manufacturer and pharmacy opioid defendants.
Those cases include defendants Amneal Pharmaceuticals Inc.; Amneal Pharmaceuticals LLC; Amneal Pharmaceuticals of New York LLC; Impax Laboratories LLC; KVK Tech. Inc.; Mylan Pharmaceuticals Inc.; Kroger Co.; Kroger Limited Partnership I; Kroger Limited Partnership II; Fruth Pharmacy Inc.; Goodwin Drug Co.; Bypass Pharmacy Inc.; Rhodes Pharmaceuticals LP; and Rhonda’s Pharmacy LLC.
A status conference hearing has been set for 1 p.m. Sept. 19 in those cases in a Charleston courtroom.
Earlier this week, the judges also denied motions to dismiss cases filed against CVS, Rite Aid, Walgreens and Walmart.
The move shows there is still hope for local governments to recoup funding to abate the opioid epidemic from those they accuse of creating and fueling it.
The order comes days after David A. Faber, federal judge for the Southern District of West Virginia, released a 185-page ruling siding with opioid distributors after hearing weeks’ worth of testimony in Cabell County and Huntington’s case against them. The Cabell County Commission is set to meet Thursday to discuss the case and whether it will appeal.
Huntington native and National Prescription Opiate Litigation Multidistrict Litigation Plaintiffs’ Executive Committee co-lead Paul T. Farrell Jr., of Farrell & Fuller Law LLC, said this shows federal and state courts have taken polar opposite positions regarding West Virginia’s public nuisance law.
“The West Virginia federal judge ruled that no cause of action exists under West Virginia law. The West Virginia Mass Litigation Panel, consisting of two state court judges, has repeatedly ruled otherwise,” he said. “The recent filing by the West Virginia Mass Litigation Panel is an indication that the cases in state court will proceed as planned.”
In his ruling, Faber said the city and county failed to prove the defendants — AmerisourceBergen Corp., Cardinal Health and McKesson Co. — did not maintain effective controls against diversion of opioids into the illicit market.
He also said the defendants did their due diligence in stopping suspicious orders.
Faber found James Rafalski’s testimony about causation of the crisis to be inadmissible, stating the methodology was unreliable. Faber also said the plaintiffs failed to show what the proper number of pills should have been.
In other opinions, Faber said it was good-faith prescribing that drove the increased volume of prescription opioids, pointing to the standard of care for doctors at the time.
Faber also ruled there is no evidence the defendants contributed to pill mills in Cabell County, stating that detecting and thwarting illegal prescribing was not the duty of the distributors.
The county and city also had proposed an abatement plan to rid the area of substance use disorder, but Faber said it only addresses harms caused by opioid abuse and addiction, not the defendants’ conduct.
The ruling came late on the Fourth of July, a day before dozens of counties and cities were set to go to trial against the distributors in state court. That trial was generally continued while attorneys mull the next step to take.
In a statement Tuesday, Farrell said the discordant rulings will likely be addressed on appeal in both federal and state court.
“Ultimately, the West Virginia Supreme Court is the final arbiter on West Virginia law,” he said.
Courtney Hessler is a reporter for The Herald-Dispatch, primarily covering Marshall University. Follow her on Facebook.com/CHesslerHD and via Twitter @HesslerHD.
