Huntington and Cabell County gambled.

The communities that have been deeply impacted by the opioid crisis wanted to hold the drug companies responsible. Yes, they wanted money—a lot of it—to help remediate the damage done by the epidemic, but they also wanted a reckoning.

They hoped a public trial would accomplish both, and they went big with a request for $2.5 billion in damages.

However, attorneys for the communities failed to prove their case against drug wholesalers AmerisourceBergen, Cardinal Health and McKesson. Federal Judge David Faber released his decision this week in favor of the drug companies.

“The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington,” the judge wrote. “And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law.”

The law that the plaintiffs chose for their argument was the common law of public nuisance which has been historically used in pollution cases. Similar claims have been made in opioid cases in other parts of the country, but Judge Faber didn’t buy it.

“The extension of the law of nuisance to cover the marketing and sale of opioids is inconsistent with the history and traditional notions of nuisance,” he wrote.

Eric Eyre, who won a Pulitzer Prize for his coverage of the opioid crisis in West Virginia and authored the book Death in Mudlick: A Coal Country Fight against the Drug Companies that Delivered the Opioid Epidemic, said Huntington and Cabell County took a chance going to trial instead of settling with the companies.

“There were multiple opportunities to settle before the trial, during the trial and after the trial,” he said.

It was an uphill battle from the beginning for the plaintiffs. They decided to present the case before a judge instead of a jury and Judge Faber was assigned to the case. Faber is conservative with a pro-business lean appointed by Republican President George H.W. Bush.

Faber sent signals during the trial that he doubted the plaintiffs’ argument. The drug company lawyers picked up on the cues and limited their defense to just eight days, focusing on their role as only distributors—not manufacturers, prescribers or pharmacies.

Huntington Mayor Steve Williams, during an appearance on Talkline Tuesday, was upset with the verdict, but also resolute. “I’m angry about it, but I’m more determined than angry,” he said. “We will carry on. We will figure out the next step and we will move forward.”

Huntington and Cabell County are still struggling with the vestiges of the opioid epidemic. When the prescription pills dried up, people with addictions moved on to heroin, meth and fentanyl. First responders and emergency rooms are kept busy with overdose cases.

If  those communities had opted for a settlement, they would at least have some additional resources to deal with the epidemic. Now they get nothing, even though the drug crisis remains. But legal hindsight is 20/20.

“They rolled the dice and they lost,” Eyre said.

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