CHARLESTON – A Kanawha Circuit Court judge has filed an order to provide more information to attorneys about a registry of about 4,000 West Virginia children suffering from Neonatal Abstinence Syndrome.
Kanawha Circuit Court Judge Duke Bloom entered the order October 7 requiring the state Department of Health and Human Resources to provide the information. In August, he had ordered the DHHR to provide the addresses for children who were reported to the agency between October 2016 and August 2020 as having been diagnosed with NAS. That order also says the DHHR was not to produce any corresponding names or any other information.
But, many of the notices sent out were returned. So, the attorneys went back to court to get more information to update the addresses.
“Because of our efforts, we have the potential to file claims on behalf of individual children, but we must do so by October 30,” attorney Booth Goodwin said. “That’s why it is so critical that we reach their guardians, and their guardians respond immediately.
“We are planning to send three more rounds of notices using the updated addresses in hopes that we can reach these parents and guardians. … These children are the most innocent and helpless victims of the opioid epidemic. They deserve to be recognized as such, but we can’t help them if their parents and guardians don’t know about or don’t act on the information we’re providing.”
Bloom previously entered an 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 this summer.
The supplied addresses were to be used for the sole purpose of effecting notice of potential claims by making one direct mailing and no more than two follow-up mailings.
Bloom also ordered the data produced from the order shall be marked “Confidential and Subject to Protective Order” and only used in connection with the case. The plaintiff attorneys are responsible for the costs of the mailings, and the data provided by the DHHR will be destroyed or returned to the DHHR within 30 days.
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.
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,” Goodwin told The West Virginia Record earlier this summer. “In order to be awarded funds from the bankruptcy estate, individuals and entities are required to file claims.”
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.
Kanawha Circuit Court case number 20-P-202