Attorney Paul Farrell Jr. asks circuit court Judges Alan Moats and Derek Swope for a continuance in the opioid trial in the Kanawha County Ceremonial Courtroom in July 2022. Lawyer Bob Fitzsimmons sits at the table to Farrell’s right.
HUNTINGTON — A U.S. Department of Justice lawsuit against drug distributor AmerisourceBergen Corporation and two of its subsidiaries could have an impact on an appeal of a similar case filed by Cabell County and the city of Huntington just one day earlier.
On Thursday, the DOJ filed a civil complaint in federal court against AmerisourceBergen Corporation and two of its subsidiaries, AmerisourceBergen Drug Corporation and Integrated Commercialization Solutions LLC, saying they violated federal law in connection with the distribution of controlled substances to pharmacies.
The government’s complaint says for years AmerisourceBergen flouted its legal obligations and prioritized profits over the well-being of Americans and contributed to the deadly toll from opioids by turning a blind eye to warning signs about suspicious sales to its pharmacy customers.
The DOJ complaint came just one day after Cabell County and the city of Huntington filed an appeal to a federal judge’s ruling in favor of three major U.S. drug distributors in a landmark lawsuit that accused them of causing a health crisis by distributing 81 million pills over eight years.
“The Department of Justice has filed its own case on the same legal theory as our case,” said Cabell County attorney Paul Farrell Jr. “We filed our appeal and the next day the DOJ filed its own case against them. I think this will have enormous benefits for our case.”
Farrell said Cabell County and Huntington’s case against AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp. was the first in the country to argue the distributors should be held responsible for sending a “tsunami” of prescription pain pills into the community and that the defendants’ conduct was unreasonable, reckless and disregarded the public’s health and safety in an area ravaged by opioid addiction.
“Since 2006, the United States Drug Enforcement Administration [DEA] began building cases against pharmaceutical distributors to curb the supply of pills and make a dent in the opioid epidemic,” Farrell said. “When we filed our first case in 2017, it was built on the model the DEA had been using. It caught like wildfire in the country and everyone filed the same case as we filed.”
However, Farrell says while Cabell County and Huntington’s case was at trial, the distributors settled approximately $20 billion worth of similar cases across the country.
“They did not settle with West Virginia,” he said. “They claimed they already settled with West Virginia’s Attorney General. We had to go to trial in all 55 counties and they settled with the 54 other counties for $400 million, but a federal judge ruled we have no case in Cabell County and Huntington. This is despite others across the state and country getting millions.”
Farrell says the DOJ’s case adopts the same analysis as the Cabell County and Huntington case.
“It’s basically claiming the same things we are claiming,” he said.
The DOJ complaint claims AmerisourceBergen’s unlawful conduct resulted in at least hundreds of thousands of violations of the Controlled Substances Act. The Justice Department seeks civil penalties and injunctive relief.
“The Department of Justice is committed to holding accountable those who fueled the opioid crisis by flouting the law,” Associate Attorney General Vanita Gupta said in a press release. “Companies distributing opioids are required to report suspicious orders to federal law enforcement. Our complaint alleges that AmerisourceBergen — which sold billions of units of prescription opioids over the past decade — repeatedly failed to comply with that requirement.”
Farrell said the county and city’s appeal will be heard by the U.S. Court of Appeals for the Fourth Circuit, while DOJ’s case will go before the Third Circuit.
“We anticipate a pretty good fight, and it will be an uphill battle, but now there is a glimmer of hope,” he said.
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