CHARLESTON, W.Va. — U.S. District Judge David Faber is going to rule again on the nearly decade-old legal battle between Huntington-Cabell County and the Big 3 drug distributors on who is to blame for the opioid epidemic.
The case was back before Faber for a hearing Thursday at the Byrd Federal Courthouse in Charleston.
The judge ruled against Huntington and Cabell County in 2022 after a 10-week trial in 2021. Faber’s verdict was appealed to the Fourth Circuit Court of Appeals which remanded the case back to him in a ruling handed down last October. The appeals court ordered Faber to reconsider the standard by which he decided AmerisourceBergen, McKesson and Cardinal Health should not be held responsible for the dumping of millions of opioid pills into the Huntington area.
The Fourth Circuit’s opinion began with an acknowledgement that West Virginia was “ground zero” for the opioid epidemic in the United States and that Huntington and Cabell County were particularly hard hit with more than 10 percent of the nearly 150,000 people living there in 2017 addicted to opioids.
Huntington attorney Paul Farrell, who represents the city in the lawsuit, told Faber Thursday the Fourth Circuit wants him to view the case through a different lens.
“You made factual findings based on an incorrect standard that the defendants proposed,” Farrell told Faber.
He argued the different lens is now the Fourth Circuit agrees with the federal Drug Enforcement Administration (DEA) that opioid distributors have the obligation under the federal Control Substance Act (CSA) to block suspicious orders of opioids, which Farrell said didn’t happen in Huntington-Cabell during the throes of the opioid epidemic.
“They have been found to be wrong. A Fourth Circuit ruling in 2025 is consistent with the DEA interruption (of the CSA),” Farrell said. “This has been the long play of the defendants, ‘We disagree with the DEA and we are fighting it.'”
Lawyers for the Big 3 told Faber nothing has changed and Huntington-Cabell still has no evidence to prove its claims that the distributors should be held liable for the epidemic and it was caused by the pills they shipped.
“The plaintiffs failed to prove that shipping (of drugs) was unreasonable,” Tim Hester, who represents McKesson, told Faber Thursday. “The defendants had no ability to judge doctors or patients. Ninety-nine percent of prescribing was in good faith.”
Hester said the wrongdoing happened after the distribution.
AmerisourceBergen attorney Robert Nicholas called the Huntington-Cabell’s attempts to prove the Big 3 are at fault is based on “paltry, inaccurate evidence.”
“High prescribing is not evidence of wrongdoing,” Nicholas said.
Charleston attorney Steve Ruby, arguing on behalf of Cardinal Health, told Faber the testimony and the evidence are still the same when 70 witnesses were called to the stand in the 2021 trial.
“The plaintiffs have failed to prove their case,” Ruby said. “There’s no path to prevail under any legal standard.”
But plaintiff’s attorney Tony Majestro urged Faber to reconsider his original verdict.
“We believe that under a proper lens they (Big 3) caused it (the dumping of pills),” Majestro said. “They didn’t believe they had the duty to look at suspicious orders.”
He told Faber if the Big 3 would have looked they would have clearly noticed what their pills were doing.
After hearing three hours of testimony Thursday, Faber said it was time to “pull the plug” on the hearing.
“I’m a little overloaded,” he said.
Faber said he’ll make his ruling on what was argued Thursday. No further briefs will be submitted. He didn’t say how long it may take him.
Farrell, speaking to MetroNews after the hearing, said there are big hurdles to clear for the plaintiffs. He said they want Faber to rule in their favor on the questions of liability, causation and abatement.
“Those are three substantial hurdles. We don’t take it lightly. It’s a big moment for Huntington and Cabell County, a lot of challenges still ahead of us,” he said. “We’re resilient and we’re standing up to fight another day.”
Abatement
Huntington-Cabell are not seeking a large monetary damage award but instead are seeking a multi-year abatement plan that would be administered through the court with money provided by the distributors. They’ve asked Faber to approve a multi-faceted plan that they believe will help the area recover from the impact of the epidemic.
Faber asked several questions about the proposed 15-year $2.5 billion abatement plan Thursday.
Cabell County Commissioner Kelli Sibonya told MetroNews after the hearing she hopes Faber will consider the human side of the epidemic.
“We have an abatement opportunity to restore our community,” Sobonya said. “We were the epicenter of the opioid epidemic right in our backyard and you can see the effects just by walking our streets, years later, it’s still there.”
Sobonya said the epidemic has impacted a member of her family. She said she often wonders if things would have been different if someone would have stopped the pill dumping.
“I just think that if somebody had done their due diligence to stop shipments of so many pills, millions of pills for such a small population, if those shipments would have been stopped would he be a productive member of our society?”