CHARLESTON – Attorneys were granted a motion requiring the state Department of Health and Human Resources to provide information about a registry of about 4,000 West Virginia children suffering from Neonatal Abstinence Syndrome.
Kanawha Circuit Court Judge Duke Bloom entered the Agreed Resolution Order on August 6 appointing attorneys G. Nicholas Casey Jr. and Bruce L. Freeman as guardians ad litem for the West Virginia children who may be class members of the state NAS Class Bankruptcy Claim filed last month. They are to work with the DHHR to determine what data may be legally disclosed and provided to the guardians ad litem to identify and notify children through their legal guardians who may be class claimants.
In their original complaint, the attorneys said the disclosure of the information by the DHHR will allow the affected families to receive “critically significant” legal notice to bring claims against Purdue Pharma and others regarding claims associated with the opioid pandemic.
diTrapano
"We are pleased that Judge Bloom recognized the efficacy of requiring the state to produce the Birth Score participants to the guardians ad litem so they can participate in the Purdue bankruptcy and future opportunities to recover benefits from those at fault," attorney Dante diTrapano told The West Virginia Record. "These children are the most vulnerable victims of the opioid epidemic, and our group is honored to help them."
The complaint for Writ of Mandumus was filed July 21 in Kanawha Circuit Court against the DHHR, Secretary Bill J. Crouch, the West Virginia Bureau for Public Health, Commissioner Ayne Amjad and the state Office of Maternal Child and Family Health.
“Purdue Pharma – perhaps one of the more culpable companies in the drug crisis – filed for bankruptcy,” attorney Booth Goodwin told The Record. “In order to be awarded funds from the bankruptcy estate, individuals and entities are required to file claims.
“We have been working hard to let families of NAS children know that claims must be filed on behalf of these children before the current deadline of July 30, 2020. However, I'm sure only a small fraction have been reached despite our best efforts.”
Goodwin said his team recently learned of a repository of data collected through the West Virginia Birth Score Program, which, since October 2016, has identified most all children born with NAS in West Virginia.
“However, the state Department of Health and Human Resources has taken the position that such data cannot be used to provide notice of the ongoing legal proceedings affecting these children,” Goodwin told The Record. “Accordingly, we have filed this complaint in Kanawha County to require such notice. We have also filed a petition in the Bankruptcy Court in New York to permit the filing of a Class Proof of Claim on behalf of these children.”
In addition to Goodwin, the other attorneys listed on the complaint are W. Stuart Calwell Jr., L. Dante diTrapano, Alex McLaughlin and Benjamin D. Adams of Calwell Luce diTrapano in Charleston; Benjamin B. Ware and W. Jeffrey Vollmer of Goodwin & Goodwin in Charleston; P. Rodney Jackson of Charleston and W. Jesse Forbes of Forbes Law Offices in Charleston.
According to the complaint, West Virginia has one of the highest rates of infants born with NAS, which is caused by exposure to drugs such as opioids before birth when the mother uses the drugs. When the baby is born, it can suffer from withdrawal symptoms.
It says the cost for care of babies with NAS can be nearly 20 times greater than for babies without it. It also says the babies can suffer ongoing physical and cognitive developmental problems, some being permanent.
Every birthing hospital in the state is required to collect and submit data on every infant born to the West Virginia Birth Score/Project WATCH program. The attorneys estimate there are about 4,000 infants born in the state with NAS since the program started in October 2016.
According to the complaint, the attorneys have sought – directly from WVDHHR – the ability to provide notice of the bankruptcy proceeding and the potential for recovery therefrom to the next friends of the infants identified with NAS in the program.
“However, the West Virginia Department of Health and Human Resources takes the position that the confidentiality provisions of West Virginia Code … prevents such notice from being given,” the complaint states. “Plaintiff’s counsel’s efforts to obtain this data directly from the WVDHHR have been met with regulatory roadblocks and bureaucratic slowdowns caused by the Covid-19 pandemic.
“Accordingly, as of today, it is beyond doubt that a significant percentage of West Virginia children born with NAS have not received actual notice of their rights in this (Purdue Pharma) bankruptcy.”
The legal team said it already represents more than 200 families of NAS babies in West Virginia.
The plaintiff team seeks a Writ of Mandamus requiring the defendants to provide access to plaintiff and counsel to the list of children and last known addresses maintained in the state Birth Score Program Registry, to provide an appropriate and sufficient notice to those children on the registry about the upcoming Purdue Pharma deadline or to appoint a guardian ad litem for the children on the registry who is provided access to the information.
They seek a prompt hearing on the matter given the July 30 deadline.
The case has been assigned to Circuit Judge Duke Bloom.
Kanawha Circuit Court case number 20-P-202