CHARLESTON – The state of West Virginia has reached a tentative $161.5 million settlement with opioid suppliers Teva Pharmaceuticals and Allergan.
The settlement, believed to be the highest per capita settlement in the nation, was announced May 25. That's the same day closing arguments in the trial were scheduled to begin.
"This is a great day for West Virginia," Attorney General Patrick Morrisey said during a May 25 press conference to announce the terms. "This is a really important case for the citizens of West Virginia. We took a big risk to do the right thing. But we're not done. We're going to keep going."
The judgement money will be used to fund addiction treatment, education and prevention programs statewide.
“It’s been a long trial and, as we have said from the very beginning, we are looking for accountability,” Morrisey said. “This settlement, along with other settlements we will receive from other cases, will provide significant help to those affected the most by the opioid crisis in West Virginia. I’ve always said that at the end of the day, through our office’s opioid work, West Virginia will have the highest per capita settlement results in the nation fighting for our people.”
The six-week-old trial, which was streamed live courtesy of Courtroom View Network, was being heard by the state Mass Litigation Panel. Judge Derek Swope was conducting the bench trial.
The trial is seen as important because West Virginia in recent years has had among the highest rate of overdose deaths in the country. In Cabell County five times the national average. The outcome could impact hearings in other states.
According to the settlement, West Virginia will receive $134,531,000 in cash over the length of the agreement. Teva also will supply West Virginia with $27 million worth of Narcan, an anti-opioid treatment drug.
Morrisey said the cash value of the settlement is 45 percent of Florida's settlement, but West Virginia only has 8 percent of Florida's population.
In addition, a clause in the settlement could help West Virginia even more. A "Most Favored Nation" clause guarantees West Virginia 2.25 percent of any national settlement. So, a large national settlement could mean more money for the state.
In total with other opioid settlements with McKinsey ($10 million), Endo ($26 million), Johnson & Johnson/Janssen ($99 million), the Teva/Allergan settlement brings the total so far for the state to $296,531,000. And, Morrisey said he expects anywhere from $85 million to $100 million from cases still pending with Purdue and Mallinckrodt.
Teva, Cephalon (now part of Teva) and Allergen were accused of ignoring the addictive danger of opioid pills so they could increase their profits and causing an epidemic. The charges include creating a public nuisance and violating the West Virginia Consumer Protection and Control Act.
In 2019, Morrisey filed lawsuits against the drug manufacturers in the Boone Circuit Court.
Plaintiff attorneys claimed the epidemic started in the 1990s when the medical community, in the beginning encouraged by a few "opioid revisionist doctors" and later supported by drug manufacturers and distributors; abandoned what had been a former tighter policy of prescribing opioids mostly for terminal and cancer treatments. Instead they alleged, backers of more opioids began to recklessly prescribe and promote the drugs for less serious conditions, describing pain as a fifth vital sign (as in a pulse).
Pain alone is not a vital sign, the state’s attorneys claimed.
Anti-drug diversion in-house programs required of the companies by the U.S. Drug Enforcement Administration were ineffective, the attorneys contended. They maintained that addicts got their start using prescription opioids and then graduated to heroin acquired on the street or more recently fentanyl, when the prescription opioids became too expensive or hard to get.
Defense attorneys argued the epidemic was caused by societal problems, illegal drug abuse including heroin and fentanyl, and not by manufacturing companies legally supplying doctors and hospitals with the pain pills they prescribed.
Janssen, the drug subsidiary of Johnson & Johnson, settled with the state on April 18 and agreed to pay $99 million, although company officials denied any wrongdoing. An additional defendant Endo also settled with the state in March for $26 million.
During the May 25 court session, Morrisey thanked state attorneys and staff.
“Miss (Linda) Singer and Motley Rice (plaintiff law firm) did a wonderful job,” Morrisey said. “Staff has been working for years on this matter.”
Swope called the case “critical to our country.”
“We rule by law and due process,” he said. “Trials by their nature focus on issues and seek to work out differences.”
The state presented 54 witnesses and more than 600 documents during the trial, and Swope said there had been 10,500 pages of testimony. He thanked the media and for the opportunity to have a trial in an open public forum.
“This is very serious business, not entertainment,” Swope said.
From the start of the trial on April 4, attorneys for the state hammered on the theme that drug manufacturers and distributors ignored the addictive dangers of the drugs they provided to make profits and engaged in a deliberate misinformation campaign to minimize the risks.
Defense attorneys countered that the companies were only doing their jobs supplying the drugs that doctors legally prescribed and that it was the doctors who made the judgement to prescribe an opioid.
An important expert witness for the state was Ruth Carter, a former DEA diversion program manager. Carter today is a consultant and a star witness for plaintiffs suing the drug companies.
Carter testified that drug suppliers were not doing their jobs identifying and holding suspicious orders.
“If a (suspicious) order is reported to the DEA it should not be shipped,” Carter said. “That is an order that should be reported.”
“Did you see any evidence of due diligence?” Carter was asked by a state attorney.
“No,” she said.
Defense witness Dr. Carolyn Warfield, a professor with the Harvard Medical School specializing in anesthesiology, said doctors had come to the realization that chronic pain was being under-treated. She said to let patients who need the drugs suffer would be unacceptable.
“In the 1970s, doctors had so much fear of opioids they were only used in operating rooms for surgery or for patients who died,” Warfield said. “I saw suffering (pain). A group of pain management doctors around the country decided we should use these drugs for patients suffering (non-cancer pain). The result was, we started using opioids and got good results. Some of these patients (without drugs) would have killed themselves, committed suicide. The (drug) side effects were low.”
According to the state’s news release the money will be distributed among agencies under the terms of a West Virginia First Memorandum of Understanding, announced in February and in the process of being ratified by counties and cities. Morrisey said 51 of the 55 counties already have agreed.
In that MOU, 24.5 percent of the monies will go directly to local government for opioid abatement and 3 percent to the state. The remaining 72.5 percent will go to the West Virginia First Foundation, which will disperse the money throughout the state.