CHARLESTON — The state Attorney General's office isn't a party to the landmark federal trial regarding the "Big Three" opioid distributors taking place just blocks from his state Capitol office, but Patrick Morrisey is keeping a close eye on the proceedings.
The first week of the trial concluded May 7 as Huntington Fire Chief Jan Rader testified about her and her department's experience dealing with the epidemic and overdoses. The City of Huntington and Cabell County sued AmerisourceBergen, Cardinal Health and McKesson in 2017 over their role in the overdose crisis after more than 80 million doses of the drugs were sent to the area in an eight-year period. The trial resumes May 10.
“Drug abuse is a deadly scourge so large that beating it will require a holistic, team approach," Morrisey told The West Virginia Record. "I think it’s critical for every city, county and branch of state government to play an important role – in litigation and problem solving – to rid our state of the opioid abuse epidemic."
The Attorney General's office is representing the state's claims against specified defendants in cases before the state's Mass Litigation Panel, doing so alongside cities and counties that also are litigating their cases within the state court system. Each of the municipalities have their own individual actions and claims, but the MLP cases are essentially in the same bucket of complaints. And while the "Big Three" distributors are defendants in some of the MLP cases, the state doesn't have claims against them.
"This fight cannot be won by one entity alone. It is an uphill battle in a war against senseless death, but we can work together and provide support to our counties and cities to maximize settlement dollars to achieve the greatest benefit for the most people."
The state has reached settlements totaling $94 million so far resolving opioid claims, while cities and counties have the ability to pursue their own claims. Morrisey says the two-pronged approach has the state in a strong position.
“For years, our office has sought to preserve, through negotiation and court arguments, the ability of cities and counties to pursue opioid claims affecting their individual jurisdictions," Morrisey told The Record. “For instance, plaintiffs involved in the ongoing trial would not have the same claims if the Attorney General’s office had not taken its action.
"West Virginia’s aggregate settlement numbers will be much higher, in part, due to our actions. City and county political subdivisions were specifically carved out of the state’s settlements with the 'Big Three' distributors, preserving their ability to sue.
“Just prior to trial, our office prevailed in federal court by helping Huntington and Cabell County fend off an effort by opioid distributors to dismiss the local claims in light of the state’s earlier settlement."
Morrisey noted that his office's March 2020 brief cited an email thread produced by Cardinal Health, in which the state specifically rejected multiple attempts by the distributors to include cities, counties and other political subdivisions in what became the May 2019 settlements with Cardinal Health and AmerisourceBergen.
“Earlier this year, our office’s settlement with marketing firm McKinsey preserved the ability of local governments to bring lawsuits against the company – a step taken by only one other state in the nation," Morrisey said. "Similar efforts by our office preserved claims for cities, counties and political subdivisions against McKesson Corporation, and I continue to hold a team approach in pending litigation against five opioid manufacturers and four national chain distributors."
Last month, Morrisey said his office continued that effort when it filed an objection to Purdue Pharma's Disclosure Statement. It had the expressed support of 18 counties and 64 cities and welcomed support from dozens of other West Virginia cities and counties through their own filings.
“My office also led the way to block West Virginia’s inclusion in the 'Big Three' national settlement proposal, paving the way for our counties and cities to be treated separately and more fairly," Morrisey said. “The Purdue Pharma bankruptcy shows that our office will put West Virginia first and oppose formulas that calculate settlement amounts largely based upon a state’s population. We do so because we want agreements that reflect the severity of the harm done to the state.
Two days after Morrisey's office filed the objection about Purdue's failure to disclose how its $7 billion bankruptcy proposal would be split among states, the company publicly disclosed the so-called Denver Plan. Morrisey's office opposes since it would distribute settlement funds based on a state or local government’s population – not the intensity of the problem. Morrisey says such disbursement would violate the overriding principle of the case, namely that the money should go where it is most needed.
“West Virginia and our supporting counties and municipalities oppose settlement distributions largely based on population,” Morrisey said. “Such proposals fail to recognize the disproportionate harm caused by opioids in West Virginia, and we must work toward providing just accountability in West Virginia and the nation.”
