CLEVELAND – West Virginia Attorney General Patrick Morrisey asked a federal judge in Ohio for clarification about West Virginia’s Medical Professional Liability Act.
On June 14, Morrisey sent a letter to U.S. District Judge Dan Aaron Polster, who is overseeing the multidistrict litigation for the opioid crisis. Morrisey asked Polster to explain when West Virginia’s law applies in lawsuits brought by municipalities against health care providers.
Polster responded later that day with a two-page order. That filing could create issues with similar opioid cases pending in West Virginia.
Morrisey
In the June 8 order, Polster refused to remand four such lawsuits filed by West Virginia municipalities to state court, saying certain defendants had been fraudulently joined because the plaintiff government entities didn’t comply with the state MPLA.
Polster said the law’s pre-suit notice requirement applied because the defendants – two doctors, a pharmacist and a pharmacy – are health care providers, according to the MLPA.
In his June 14 letter, Morrisey maintained the MLPA doesn’t apply to all claims against a health care provider, just to “medical professional liability” claims involving death or injury because of treatment or lack of treatment.
“In other words, the defendant's status as a health care provider is a necessary but not sufficient condition for the MPLA to apply," Morrisey wrote in his letter. “But the lack of discussion of this requirement could lead other parties to believe that a defendant's status as a health care provider alone triggers the MPLA's application without regard to the nature of the action.
“This issue is of great interest to the WVAG because the State of West Virginia, through the WVAG, has actions pending before the West Virginia Mass Litigation Panel against national retail pharmacy chain defendants. … in which the defendants seek dismissal of the state’s opioid-dispensing claims based on the MLPA’s application.”
Morrisey asked Polster to clarify whether simply being a health care provider alone means the MLPA applies to a defendant. The state’s retail pharmacy chain trial is scheduled to take place this fall before the MLP, which is handling more than 80 opioid-related lawsuits filed by the state, counties, municipalities and hospitals.
Morrisey’s letter also addressed the questions of whether the MPLA coverage of “liability for damages” or “other claims that may be contemporaneous to or related to the alleged tort of breach” includes claims seeking the equitable remedy of public nuisance abatement.
Those pharmacies are looking to dismiss claims over opioid dispensing and arguments over whether the MPLA applies to a national pharmacy chain's failure to put in place and follow policies to protect against the diversion of opioids for illegitimate purposes, according to the letter.
In addition, there was a question if the MPLA covers claims that seek the abatement of a public nuisance, which is what the local governments have sued drug companies and pharmacies for causing by not protecting against the diversion of opioids. Also, there are questions about the MPLA’s coverage of claims over an injury or a death applies to the state's claims seeking future relief to abate a public nuisance.
Morrisey’s letter asked if the MPLA’s reference to a person also applies to a county or municipality.
In his two-page response order, Polster wrote the issues addressed in his June 8 remand order were “necessarily limited” to only those parties raised in their briefs.
“The court (Polster) concluded the plaintiffs were ‘claimants’ under W.Va. Code … so the notice requirement applied,” the order states. “The court did not address any of the other points raised by the Attorney General in his letter.”
The State of West Virginia is not a party to the cases in Polster’s MDL, so his letter was sent to Polster with a request for it to be filed on the docket. Polster also thanked Morrisey for the letter and hoped he provided the requested clarification.
If national pharmacy chains such as Walgreens, CVS and Walmart fall under the state MPLA like small locally owned pharmacies do, those companies could seek to have the cases against them dismissed as well. This question also could be brought up in dozens of neo-natal opioid addiction cases that are being filed in West Virginia as well and could end up in front of the MLP.
The seven West Virginia cases mentioned in Polster’s June 8 remand order are Town of Chapmanville v. West Virginia Board of Pharmacy et al., City of Williamson v. WVBOP et al., Town of Kermit v. WVBOP et al., Town of Gilbert v. WVBOP et al., Lincoln County Commission v. WVBOP et al., Mercer County Commission v. WVBOP et al. and City of Welch v. WVBOP et al. The four non-diverse health care providers named as defendants are Dr. Harold Anthony Cofer Jr., Dr. Cameron Justice, Chip RX LLC and pharmacist George Chapman III.
Morrisey’s letter was signed by Deputy AGs Ann Haight and Vaughn Sizemore, Assistant AG Abby Cunningham and by Linda Singer and Elizabeth Smith of Motley Rice’s Washington office. The AG's office did not return numerous messages seeking comment.
U.S. District Court for the Northern District of Ohio case number 1:17-md-02804