By Cara Salvatore

Law360 (March 18, 2021, 11:14 PM EDT ) Opioid distributors fighting to end an upcoming bellwether trial before it starts told a West Virginia federal judge Thursday that the "public nuisance" claim anchoring the case doesn't actually apply.

The nation's three major opioid wholesale distributors, which move drugs from manufacturers to pharmacies, told U.S. District Judge David Faber that West Virginia's Cabell County and its seat, Huntington, left themselves without a case when they chose to forsake all legal theories except the claim that the flood of opioids is a public nuisance.

"West Virginia law has never recognized a public nuisance claim where the gist of the complaint is that a product causes personal injury that in turn caused emotional distress or economic loss," attorney Lane Heard argued on behalf of the three major U.S. drug distributors: AmerisourceBergen Corp., McKesson Corp. and Cardinal Health Inc. "Plaintiffs are asking this court to go where the West Virginia Supreme Court has never gone."

State and local governments have increasingly sought to deploy the nuisance theory over the course of the opioid litigation, and it has become a reliable subject of debate. The corporations say the theory is traditionally considered narrow, applying to things like pollution, noise, smells, uncontrolled fires, or hard-to-control diseases like smallpox. Expanding it to opioid cases is questionable, they said.

The opioid plaintiffs at Thursday's arguments, however, say the nuisance theory's use may have been novel a few years ago, but courts around the country have embraced it. The opioid epidemic is so ubiquitous and so corrosive of common goods, they say, that it can soundly be considered a public nuisance.

"The effects of the opioid epidemic are far-reaching throughout the community," attorney Anthony Majestro said for the plaintiffs. Fetuses can be exposed to opioids in utero, and children whose parents are addicted take their trauma to school, interfering with their own education and others', he said.

"The opioid effect, like air pollution, like noise, is not limited to those directly impacted," Majestro said.

He also suggested that public entities "seeking to enforce the public's rights" may have the ability to use the public nuisance argument for opioids even if private parties with private causes of action do not.

In June 2017, only one court in the country had recognized the flood of opioids as a public nuisance, but now courts in 20 states have accepted the argument that it is a public nuisance, Majestro told Judge Faber.

Heard batted back that many of those decisions were not substantive and didn't have any analysis.

The opioid crisis has spurred mountains of litigation in courts all around the nation. So sprawling is the multidistrict litigation that the Ohio federal judge overseeing it has taken the rare step of offloading at least one bellwether trial to another federal court: Judge Faber's. The hotly anticipated trial is set for May 3.

At the same hearing Thursday, the parties debated the issue of proximate cause, with the distributors arguing that they were simply too remote from the harms that befell others to bear responsibility. Pharmacies, doctors and illegal drug dealers all came in after the distributors in the causal chain, they said.

Judge Faber took both issues under advisement. There are two more pretrial conferences on the calendar for April.

Huntington is represented by Anne Kearse, Joseph Rice, Linda Singer and David Ackerman of Motley Rice LLC, and Charles "Rusty" Webb of Webb Law Centre PLLC.

Cabell County is represented by Paul Farrell Jr. of Farrell Law, Anthony Majestro of Powell & Majestro PLLC, and Michael Woelfel of Woelfel & Woelfel LLP.

AmerisourceBergen is represented by Gretchen Callas of Jackson Kelly PLLC, and Robert Nicholas and Shannon McClure of Reed Smith LLP.

McKesson is represented by Mark Lynch, Christian Pistilli, Laura Wu and Megan Crowley of Covington & Burling LLP.

Cardinal Health is represented by Enu Mainigi, F. Lane Heard III and Ashley Hardin of Williams & Connolly LLP.

The cases are City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, in the U.S. District Court for the Southern District of West Virginia.

The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.

--Additional reporting by Emily Field and Jeff Overley. Editing by Adam LoBelia.

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