City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al

Filing 1285

MEMORANDUM OPINION AND ORDER denying Defendants' 1005 MOTION for Summary Judgment Regarding Abatement. Signed by Senior Judge David A. Faber on 4/26/2021. (cc: counsel of record who have registered to receive an electronic NEF) (jsa)

Case 3:17-cv-01362 Document 1285 Filed 04/26/21 Page 1 of 8 PageID #: 43083

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
Plaintiff,
v.

Civil Action No. 3:17-01362

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
v.

Civil Action No. 3:17-01665

CABELL COUNTY COMMISSION,
Plaintiff,
v.

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ motion for summary
judgment on the ground that plaintiffs have no right to
abatement.

(ECF No. 1005.)

For the reasons that follow, the

motion is DENIED.
Plaintiffs, a West Virginia city and a West Virginia
county, proceed in this case on a single cause of action against
defendants, three prescription drug distribution companies.

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That cause of action is public nuisance.
single remedy:

Plaintiffs seek a

abatement of the alleged public nuisance.

In this motion, defendants challenge the authority of
plaintiff Cabell County (“Cabell”) to establish and administer
the programs (such as addiction treatment programs) that Cabell
wants the court to order defendants to fund to abate the public
nuisance that Cabell alleges. 1

Defendants say that Cabell is the

wrong plaintiff to pursue the relief it seeks in this case.

In

support, defendants point to Cabell’s failure to take hitherto
the actions it wants to take if it wins the case; they also
point to testimony by Cabell’s representative stating that such
actions are not functions of a county government.
In opposition, Cabell says that the question of its
authority is purely a legal one.

Thus, Cabell says, the

testimony purportedly disavowing its authority is irrelevant,
and the issue boils down to whether West Virginia Code § 7-1-3kk
authorizes Cabell to seek and implement its sought-after
abatement.

Cabell says the power to abate under § 7-1-3kk goes

beyond the power to enjoin and that West Virginia law regulating
drugs does not preempt its claim.

Cabell also disputes

defendants’ contention that it is the wrong plaintiff and
disputes defendants’ characterization of the testimony upon
This motion does not seek summary judgment against plaintiff
City of Huntington.
1

2

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which defendants rely to show that Cabell admitted a lack of
authority to implement its proposed abatement plans.
I.

Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides:
A party may move for summary judgment, identifying
each claim or defense—or the part of each claim or
defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a
matter of law.

The moving party has the burden of establishing that there is no
genuine issue as to any material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

This burden can be met by

showing that the nonmoving party has failed to prove an
essential element of the nonmoving party’s case for which the
nonmoving party will bear the burden of proof at trial.
322.

Id. at

This is so because “a complete failure of proof concerning

an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.”

Id. at 323.

Once there is a proper challenge to the sufficiency of the
nonmoving party’s evidence on an essential element, the burden
shifts to the nonmoving party to produce sufficient evidence for
a jury to return a verdict for the nonmoving party.

See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury
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could reasonably find for the plaintiff. The judge’s
inquiry, therefore, unavoidably asks whether
reasonable jurors could find, by a preponderance of
the evidence, that the plaintiff is entitled to a
verdict . . . .
Id. at 252.

“If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.”
at 250-51.

All reasonable inferences are to be drawn in the

nonmoving party’s favor.
II.

Id.

See id. at 255.

Discussion
The arguments in this motion go mostly to whether the

equities favor providing the only form of relief that plaintiffs
seek (funding) and to what degree (the amount of funding).

To

grant summary judgment, the court would have to rule that, as a
matter of West Virginia law, abatement in the form of funding
for remediation efforts is never permissible.

The court is

unprepared to do so.
Defendants first argue that municipalities have no place in
the business of regulating drug distribution and that this case
is essentially an ill-advised foray into that business.
Defendants point out that many state governments have expressed
the sentiment that municipalities’ claims tend to hinder the
resolution of the opioid litigation on a grand scale.
Regardless of whether defendants are correct, the court cannot
grant summary judgment on that basis alone.

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Building upon their first argument, defendants next state
that Cabell (1) has not previously engaged in substantive
attempts to address the alleged public nuisance; and (2)
acknowledges that, as a county government, its function is not
to engage in such attempts.

Specifically, defendants cite

deposition testimony by Cabell’s designated representative
stating that preventive or remedial actions to address the
alleged public nuisance are not Cabell functions.

Defendants

consider this testimony conclusive on the issue of Cabell’s
authority to create or fund their desired abatement programs.
They conclude that because Cabell is legally powerless to spend
the billions in funding that it seeks, and because Cabell does
not seek an injunction, there is no abatement remedy that the
court can provide.
The court agrees with Cabell that defendants cannot rely on
deposition testimony to establish a lack of authority because
the scope of Cabell’s authority is a legal question.

Cabell has

the statutory authority to take “appropriate and necessary
actions for the elimination of hazards to public health and
safety and to abate or cause to be abated anything which [it]
determines to be a public nuisance.”
1-3kk.

See W. Va. Code Ann. § 7-

Defendants raise the important question of whether this

grant of abatement authority includes the power to seek funding
alone and to administer the programs that plaintiffs seek to
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fund, even if such programs are outside the ordinary realm of
county functions.
Defendants are correct that there is no precedent from the
Supreme Court of Appeals of West Virginia providing that
abatement may take the form of an award solely of funding for a
remediation plan.
contrary.

But neither is there a holding to the

In most public nuisance cases requiring remediation

efforts, an injunction requiring the defendant to undertake such
remediation is feasible.

As Judge Polster has pointed out,

however, such an order would not be feasible here because
defendants “do not have the requisite infrastructure.”

See In

re Nat’l Prescription Opiate Litig., No. 1:17-MD-2804, 2019 WL
4043938, at *2 (N.D. Ohio Aug. 26, 2019). 2
To say that West Virginia law never permits funding of a
remediation plan as a form of abatement is to draw too great an
inference from the case law.

If the facts prove that an

injunction requiring remediation would not be feasible, it is
unclear why the court could not order funding as the functional
equivalent. 3

While such a scenario has never reached the Supreme

To the extent defendants wish to challenge the sufficiency of
Cabell’s infrastructure to carry out its proposed abatement
plan, they may do so at trial. This motion challenges
plaintiffs’ authority, not their infrastructure.
2

The court will not attempt to set forth other potential
limitations on an order of funding, and defendants are free to
argue for such limitations. The court merely rejects the
3

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Court of Appeals of West Virginia, this court considers a
holding by that court that abatement-by-funding is always
impermissible unlikely.
Defendants’ state-law field preemption argument is also
unavailing.

Defendants rely on EQT Prod. Co. v. Wender, 191 F.

Supp. 3d 583 (S.D.W. Va. 2016).

On review of that case, the

Fourth Circuit Court of Appeals affirmed that the municipality
there could not “override the state’s licensing decisions by
imposing a blanket ban on” underground injection control wells.
EQT Prod. Co. v. Wender, 870 F.3d 322, 335 (4th Cir. 2017).

The

appeals court expressly left the door open, however, for the
municipality to pursue a public nuisance action.

See id.

It

also distinguished between state-licensed activity that is being
carried out properly and that which is being carried out
improperly, distancing the reach of its opinion from the latter
category.

See id.

Thus, while state law sometimes preempts

municipal action, it does not stop Cabell’s lawsuit in its
tracks.
III. Conclusion
For the reasons expressed above, defendants’ motion for
summary judgment (ECF No. 1005) is DENIED.

contention that such relief is utterly prohibited under West
Virginia law in the context of a public nuisance case brought by
a county commission.
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The Clerk is directed to send a copy of this Memorandum
Opinion and Order to those counsel of record who have registered
to receive an electronic NEF.
IT IS SO ORDERED this 26th day of April, 2021.
ENTER:
David A. Faber
Senior United States District Judge

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