Federal Judge Upholds Legal Definition Of “Public Nuisance,”, Dismisses $2.5B Opioid Suit

Judge David A. Faber, Senior District Judge for the Southern District of West Virginia, has dismissed the “public nuisance” lawsuit launched by the city of Huntington and Cabel County against AmerisourceBergen Drug Co., Cardinal HealthCAH
and McKessonMCK
Corp. The suit claimed that the defendants’ legal distribution of opioids in the city and county caused an epidemic.

Applying the law of “public nuisance” as has been described in several of my previous columns, Judge Faber affirmed that public nuisances are wrongful interferences with public property or resources, not adverse consequences of the legal sale of products. While defendant companies from 2006 to 2014 shipped 51.3 million opioid pills to retail pharmacies in plaintiff communities, “there is nothing unreasonable about distributing controlled substances to fulfill legally written prescriptions,” the judge ruled.

Huntington Mayor Steve Williams (D) issued a statement that said, among other things, that the case was about providing medical providers with the resources they need to mitigate the opioid crisis. But of course harm to victims is not a sufficient condition of tort liability.

Cardinal Health and McKesson in separate statements noted that they maintained systems to prevent the diversion of opioids to illicit channels.