March 18 (Reuters) - A U.S. appeals court on Monday sent

a West Virginia city and county's bid to revive their $2.5

billion lawsuit against top drug distributors over the opioid

crisis to the state's highest court.

Huntington and Cabell County, the county the city is located

in, had urged a three-judge panel of the 4th U.S. Circuit Court

of Appeals in January to overturn a lower court's ruling

rejecting their case.

But the panel ruled that the West Virginia Supreme Court

must first decide a key legal issue: whether the distributors

can be liable under the state's law for creating a "public

nuisance" by flooding the region with pills.

A lawyer for Huntington and Cabell did not immediately

respond to requests for comment. Nor did the distributors -

McKesson, Cardinal Health ( CAH ) and Cencora ( COR )

(formerly called AmerisourceBergen).

The city and county claimed in their 2017 lawsuit that the

distributors shipped approximately 81 million opioid pills to

the county, which has fewer than 100,000 people, during an

eight-year period, failing to look for red flags like excessive

orders by single pharmacies that would signal they were illicit.

That "over-supply" fueled illegal sales and an epidemic of

overdoses and increasing crime rates, they said. They claimed

that the distributors should have to fund a $2.5 billion plan to

abate the public nuisance created by the flood of pills,

including addiction treatment and overdose prevention programs.

U.S. District Judge David Faber ruled against Huntington and

Cabell in 2022, following a non-jury trial. He found that West

Virginia's public nuisance law covered only conduct that

directly damages public property or resources, not harm caused

by drug sales.

Senior Circuit Judge Barbara Keenan wrote Monday that

whether the case can be revived depends on interpreting West

Virginia law. Therefore, she wrote, the question of whether the

state's public nuisance law covers harm from opioid sales must

go to its highest court.

Keenan was joined by Circuit Judges Robert King and DeAndrea

Benjamin. All three judges were appointed by Democratic

presidents.

Nearly 645,000 people died in the United States from

overdoses involving opioids, both prescription and illicit, from

1999 to 2021, according to the U.S. Centers for Disease Control

and Prevention. West Virginia has the highest overdose deaths

per capita of any state.

Huntington and Cabell's lawsuit was one of the first of

thousands of cases brought by local governments over the opioid

crisis to go to trial in 2021.

The litigation has now largely wound down, with the

distributors, drugmakers and pharmacy chains agreeing to pay

more than $50 billion in nationwide settlements with state and

local governments.

Because Huntington and Cabell took their claims to trial,

they will not be able to get any settlement money from the

distributors. However, they are part of nationwide deals with

drugmakers and pharmacies.

The case is City of Huntington, West Virginia v.

AmerisourceBergen Drug Corp et al, 4th U.S. Circuit Court of

Appeals, No. 22-1819.

For Huntington and Cabell: David Frederick of Kellogg,

Hansen, Todd, Figel & Frederick

For McKesson: Paul Schmidt of Covington & Burling

For Cardinal: Enu Mainigi of Williams & Connolly

For Cencora ( COR ): Robert Nicholas of Reed Smith

Read more:

West Virginia county, city push to revive opioid claims

against distributors

U.S. drug distributors prevail in $2.5 billion West Virginia

opioid case

Pharmacies, drug companies settle lawsuits over U.S. opioid

crisis

(Reporting By Brendan Pierson in New York)