CHARLESTON – West Virginia’s liability law has passed its first test by allowing defendants in opioid epidemic suits to spread blame.

The new law gives defendants 180 days to identify possibly responsible parties that plaintiffs didn’t sue.

Those other parties will pay nothing on a jury verdict, but their share of liability will reduce the damages defendants must pay.

In July in federal court, drug distributor Cardinal Health served a “notice of non party fault” that stretched the law to the limits of society.

Cardinal Health counsel Susan Robinson of Thomas Combs & Spann in Charleston identified 1,670 physicians and 113 pharmacies that might bear responsibility in Huntington. She identified 68 manufacturers, 24 distributors, Blue Cross Blue Shield, and West Virginia Public Employee Insurance Agency. She identified 20 state and local government offices.

She identified Medicare and Medicaid Services, U. S. Food and Drug Administration, Drug Enforcement Administration, and Federal Bureau of Investigation. She identified 47 individuals involved in illegal drug sales.

Other defendants identified categories but provided no names. They pleaded that discovery hadn’t begun and they would supplement the record.

As deadlines approached for notices in further suits, plaintiffs and defendants agreed to limit them to categories for the moment.

Senior District Judge David Faber approved the agreement Sept. 7, putting specific notices off until a conference required by rule or thereafter.

On Sept. 12, in a suit the Kanawha County Commission filed, Robinson filed a notice for Cardinal Health listing only categories.

She wrote that if litigation proceeds, “it will necessarily involve all persons and entities who were involved in manufacturing, prescribing, dispensing, regulating and using opioid medications in the county, including local doctors, pharmacies, manufacturers, government actors, and so on.”

She wrote that the complaint was devoid of allegations about suspicious orders that the county believes Cardinal Health didn’t report.

“It does not name the pharmacies that placed the alleged suspicious orders, nor which prescribers wrote unlawful prescriptions,” Robinson wrote. “Instead, the implication of plaintiff’s complaint is that every pill shipped into the county was dispensed or used unlawfully.

“The suspicious orders that are the basis of plaintiff’s vague allegations were necessarily made by a pharmacist.”

Rite-Aid also filed notice, as did distributors McKesson, AmerisourceBergen, Masters Pharmaceutical, Harvard Group and Anda Pharmaceuticals.

Rite-Aid counsel Webster Arceneaux of Lewis Glasser Casey and Rollins in Charleston wrote that according to Kanawha County, otherwise legal distribution of opioids led to an epidemic.

“The county never names, let alone plausibly describes, the steps between this plainly lawful beginning and this unlawful and unfortunate end,” Arceneaux wrote. “The county’s ambiguous theory by necessity potentially implicates every step in a prescription opioid’s life cycle, from manufacture to consumption.

“If the county indeed has had too many opioid prescriptions for its citizenry, then fault may lie with medical professionals, without whose medical judgments and resulting orders no legal opioid prescriptions could be ordered, distributed, or filled.”

Arceneaux wrote that insurers have information regarding patient requests for coverage, and their knowledge may have revealed too much prescribing. He wrote that it would require cooperation from law enforcement to identify individuals whose illegal activity contributed to the problem.

He wrote that Rite-Aid ceased distributing opioids within the county in 2014.

For Amerisource Bergen, A. L. Emch of Jackson Kelly in Charleston wrote that he couldn’t file a specific notice due to vague allegations in the complaint. He wrote that the county targeted defendants with no detail whatsoever regarding other participants in a closed system.

He wrote that the county implied that Amerisouce Bergen honored suspicious orders from pharmacies.

“But plaintiff does not identify any such pharmacies, although it must know of them in light of its allegations,” Emch wrote.

He wrote that the county didn’t appropriately recognize criminal conduct that is the clear proximate cause of the alleged epidemic. He wrote that in each category, persons who work in the vast majority of entities have conducted themselves honorably.

“There may be entities within each category who have intentionally transferred controlled substances from authorized to unauthorized entities for the purpose of abuse or misuse, which is a criminal act,” Emch wrote.

He wrote that Amerisource Bergen doesn’t believe its customers engaged in diversion, “but cannot say that it is not possible that some may have done so without its knowledge.” He wrote that if FDA or DEA failed to meet obligations, fault must be apportioned.

“Numerous federal, state, and local agencies had and have knowledge of opioid prescribing, dispensing, and use practices, as well as illegal drug dealing, and had authority to enforce the law,” he wrote.

McKesson counsel Jason Holliday of Flaherty Sensabaugh Bonasso in Charleston wrote that his client is one of many distributors in the county.

“It is possible that plaintiff has not named as defendants all wholesale pharmaceutical distributors of the many who may have allegedly distributed excess controlled substances into the county,” he wrote, adding that the failure of government to take timely and corrective action caused or contributed to the harms the county alleged. 

Anda counsel Keith Jones of Jones Law Group in Charleston filed as well.

“Upon information and belief, the most significant source of diversion of controlled substances is patients who obtain controlled substances legally, then unlawfully sell or give them to others for other than legitimate medical purposes,” he wrote. “Many individuals known and knowable to the county’s and state’s law enforcement authorities have been involved in the illegal sale of opioid medications within or into the county.”

Faber presides over suits from attorney general Patrick Morrisey, four counties, four cities, and two towns. Lincoln County, Mercer County, the cities of Welch and Williamson, and the towns of Gilbert and Kermit have moved to remand their suits to local courts.

Faber plans a hearing for all six on Oct. 19. 

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Flaherty Sensabaugh Bonasso PLLC Jackson Kelly PLLC

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