Public nuisance law can cover product sales, profs tell 4th Circ.

Jan 3 (Reuters) – Six law professors on Tuesday urged a federal appeals court to take an expansive view of public nuisance law as it considers whether to revive a lawsuit by a West Virginia city and county against the top U.S. drug distributors over their role in the opioid crisis.

U.S. District Judge David Faber in Charleston, West Virginia found in July that plaintiffs can sue parties for creating a so-called public nuisance only for damage to public property or resources, like roads or waterways, and not for the sales of products that harm public health. He granted judgment in favor of McKesson Corp, AmerisourceBergen Drug Corp and Cardinal Health Inc against the city of Huntington and Cabell County.

In an amicus brief filed with the 4th U.S. Circuit, the professors, who focus on tort and property law and related areas, called Faber’s concept of public nuisance in West Virginia “overly narrow,” arguing that the state’s courts have recognized public nuisance claims over sales of harmful products, including opioids.

The brief extensively cites past writing on public nuisance by two of the professors, Leslie Kendrick of the University of Virginia School of Law and David Dana of Northwestern Pritzker School of Law. Kendrick also acted as counsel for the group.

It comes as some plaintiffs’ lawyers seek to expand the scope of public nuisance law, notably to encompass gun sales.

The professors took no position on the specific dispute between Huntington and Cabell and the distributors. Faber had ruled against the city and county on multiple grounds besides the public nuisance issue, which the professors did not address.

Paul Farrell of Farrell and Fuller, a lawyer for the plaintiffs, said the brief supported the plaintiffs’ view of public nuisance, and that he was “cautiously optimistic” that the circuit would overturn Faber’s ruling.

The distributors did not immediately respond to requests for comment.

Huntington and Cabell were among thousands of local governments around the country to file lawsuits over the opioid crisis. Like others, they claimed that drugmakers falsely downplayed opioids’ risks and that distributors and pharmacies failed to stop illegal sales, resulting in an epidemic of addiction and overdose deaths, and sought to recover the cost of addressing the crisis.

Their claims against the distributors were chosen for an early test, or bellwether, trial, which took place before Faber without a jury in 2021.

The amicus brief comes the week after Huntington and Cabell filed their briefappealing their trial loss to the 4th Circuit. In addition to taking issue with Faber’s position on public nuisance, they argued that he incorrectly found that distributors have “minimal” responsibility for flagging potentially illicit sales.

Nearly all of the opioid litigation has now settled, for a total of more than $50 billion, though Huntington and Cabell are not receiving any money from the distributors because they chose to go to trial.

The case is City of Huntington v. AmerisourceBergen Drug Corp, 4th U.S. Circuit Court of Appeals, No. 22-1819.

For Huntington and Cabell County: David Frederick of Kellogg, Hansen, Todd, Figel & Frederick; and Paul Farrell of Farrell & Fuller

For amici: Leslie Kendrick of the University of Virginia School of Law; and Ruthanne Deutsch of Deutsch Hunt

For McKesson: Paul Schmidt of Covington & Burling

For AmerisourceBergen: Kim Watterson of Reed Smith

For Cardinal: Enu Mainigi of Williams & Connolly