CHARLESTON – Two days after a federal judge ruled in favor of opioid distributors in a bellwether case, discussions about missed settlement opportunities continue.
But, one of the lead attorneys in the case say no serious or substantial settlement offers were presented, and no discussions about such settlements took place either.
On July 4, U.S. District Judge David A. Faber ruled in favor of AmerisourceBergen, Cardinal Health and McKesson after Cabell County and Huntington had sued the drug distributors for shipping so many opioids to the community that it created a public nuisance.
Majestro
Issuing his ruling more than 11 months after the bench trial ended, Faber said the companies’ actions did not cause the opioid epidemic.
“The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington,” Faber wrote in his 184-page ruling. “And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law.
“In view of the court’s findings and conclusions, the court finds that judgment should be entered in defendants’ favor.”
Cabell County and Huntington filed suit against the companies in 2017 seeking to hold the companies accountable for their alleged part in the opioid epidemic by sending more than 540,000 opioids each month to independent and chain pharmacies – excluding hospitals and/or hospital pharmacies – located in Cabell County. They sought more than $2.5 billion in damages.
On social media, veteran journalist Eric Eyre said Cabell County and Huntington had “multiple opportunities to settle before the trial, during the trial and after the trial.”
“They rolled the dice, and they lost,” wrote Eyre, who won a Pulitzer Prize for his coverage of the opioid crisis in West Virginia. He also wrote a book titled "Death in Mudlick: A Coal Country Fight against the Drug Companies that Delivered the Opioid Epidemic."
Greg Thomas with West Virginia Citizens Against Lawsuit Abuse also had questions on social media about the case.
“How much money was offered?” Thomas, a conservative political consultant, asked on Twitter. “Why did they turn it down? What did their lawyers tell them? Why did they pick those lawyers? Why pursue a nuisance claim? Was this case impacted by others those same lawyers were working on in other states?”
Thomas also blamed the plaintiff lawyers for a missed opportunity.
“This case clearly shows how greedy personal injury lawyers are much more focused on their private planes, vacation homes in Puerto Rico, and early retirement than they were on providing funding for the City of Huntington or Cabell County” Thomas told The West Virginia Record. “The rush by local politicians to file lawsuits hoping for jackpot justice against deep-pocket defendants as a way to fund their programs does little to actually help those in need.
“Public nuisance is just a legal term of art to provide cover for the politically and economically beneficial relationship between the power hungry politicians and the greedy personal injury lawyers. The McGraws did this for years, and West Virginia and the state was never better off for it. But their campaign donors got rich. We have seen this movie before, and there is no need to put the people of West Virginia through it again.”
Thomas also tweeted that there was “lots of finger pointing” about the “failed opioid litigation.”
“Hopefully someone will get to the bottom of it,” he tweeted. “Potentially passing up on $300 million would be a huge mistake made by someone. Let’s hope Cabell County residents find out what really happened. …
“Instead of people complaining about the Huntington opioid verdict, perhaps someone could ask what the settlement offer was to see how much money was left on the table. Greed is a sin and one which we are guilty of, but not necessarily with other people’s money to this degree.”
Tony Majestro, one of the lead attorneys who represented Cabell County in the case, said talk of such a settlement simply isn’t true.
“I wasn’t aware Eric was on the negotiating team or this settlement,” Majestro said July 6 on MetroNews’ TalkLine radio program with host Hoppy Kercheval. “That story is just plainly false. What’s left out of this is that West Virginia was not part of the $18 billion national settlement. Because West Virginia had previously settled the state’s claim, they didn’t include us in that settlement.”
Majestro said the default allocations in that case were decided by bigger states, and West Virginia wasn’t give a good percentage. If like in other cases, West Virginia would have received a little more than 1 percent of the settlement, or about $196 million.
“The AG (Attorney General Patrick Morrisey), the city and county lawyers don’t believe that was enough to clean up the mess these plaintiffs have caused,” Majestro told Kercheval.
Majestro said there were some settlement negotiations, like there are in all cases.
“The defendants wanted to settle the entire state,” he said. There was never an offer, to my knowledge as a party in the case, to settle the Cabell-Huntington case by itself. The offers to settle the whole state were woefully inadequate for the damages for the entire state.
“Even if Cabell Huntington wanted to take the deal, there’s no way we could have convinced the other cities and counties to settle. It’s just not true.”
Majestro said he and his team still believe in their arguments.
“I think we had a judge (Faber) who was persuaded by the defense they didn’t do anything wrong,” Majestro said. “And that’s what happens when you try cases.
“We are beyond disappointed with the result. We put a whole lot of money, and whole time, heart and effort. We believed in our case then, and we believed in our case now.”
Majestro said the legal team is considering an appeal, which would go to the Fourth Circuit Court of Appeals in Richmond, Virginia.
“It’s an almost 200-page ruling,” he said. “Our team is evaluating it.”
On Twitter, Eyre also said there has been a settlement offer of $400 million in the state Mass Litigation Panel trial of more than 60 municipalities and counties with the distributors. That trial was scheduled to begin July 5, the day after Faber issued his ruling. But, that trial has been continued for now.
Eyre also said that settlement hasn’t been finalized and that it might not be announced for days.
Majestro told Kercheval he can’t comment on that.
“We don’t negotiate settlements in public,” The hearing where the judge made the decision to continue the case is sealed.
“Watch this space, and we’ll see how it turns out.”
Majestro did note that Cabell County and Huntington, its county seat, aren’t being left out.
“Even if we don’t reverse the result on appeal, this is just the manufacturer phase,” Majestro told Kercheval. “The Attorney General prosecuted an earlier case and got a $265 million settlement. Cabell-Huntington will share part of that. Also, they’ll get part of multi-billion settlement with Purdue Pharma and Mallinckrodt. And, the third phase is this fall against pharmacies.
“This is a picture that’s not yet painted. We started down the road to complete the picture. It’s not done yet. In the end, West Virginia will be better off than any other state. I firmly believe that.”