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Public nuisance law may cover product sales, say professors at 4th Circ.

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  • Brief arrives in West Virginia city and county’s appeal over loss of opioid lawsuit
  • Recent efforts to expand use of public nuisance law extend to gun sales

Jan 3 (Reuters) – Six law professors on Tuesday urged a federal appeals court to take a broad view of public nuisance law as it considers reviving a lawsuit brought by a city and county in Virginia- Occidentale against major US drug distributors for their role in the opioid crisis.

U.S. District Judge David Faber in Charleston, West Virginia, ruled in July that plaintiffs could sue parties for creating an alleged public nuisance only for damages to public property or resources, such as roads or waterways, and not for the sale of products that cause harm to the public. health. He rendered 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 U.S. 4th Circuit, the professors, who focus on tort and property law and related fields, called Faber’s concept of public nuisance in West Virginia ” too narrow,” arguing that state courts have recognized public nuisance claims over sales of harmful products, including opioids.

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

It comes as lawyers for some plaintiffs seek to expand the scope of public nuisance law, including 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 several grounds in addition to the issue of public nuisance, which the professors did not address.

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

Distributors did not immediately respond to requests for comment.

Huntington and Cabell were among thousands of local governments across the country filing lawsuits over the opioid crisis. Like others, they claimed that drugmakers wrongly downplayed the risks of opioids and that distributors and pharmacies had failed to end illegal sales, leading to an epidemic of addiction and overdose deaths. and sought to recoup the cost of resolving the crisis.

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

The amicus brief comes the week after Huntington and Cabell filed their brief appealing their loss at trial with the 4th Circuit. In addition to challenging Faber’s position on public nuisance, they argued that he erroneously concluded that distributors had a “minimal” responsibility to report potentially illicit sales.

Nearly all of the opioid lawsuits are now settled, totaling more than $50 billion, although Huntington and Cabell receive no money from distributors because they chose to go to court.

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

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

For Friends: Leslie Kendrick of the University of Virginia Law School; 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

Read more:

US drug distributors prevail in $2.5 billion opioid case in West Virginia

Buffalo, New York, sues gun makers, accusing industry of fueling violence

Our standards: The Thomson Reuters Trust Principles.

Brendan Pierson

Thomson Reuters

Brendan Pierson advises on product liability litigation and all areas of healthcare law. He can be reached at brendan.pierson@thomsonreuters.com.

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