CHARLESTON – More than 100 West Virginia cities and counties will share a $400 million settlement with the nation’s three largest opioid distributors.
The settlement was announced August 1, less than a month after the trial was postponed. The cities and counties had accused the distributors – AmerisourceBergen, Cardinal Health and McKesson – of fueling the state’s opioid epidemic by flooding the market with the pain pills.
The attorneys representing the plaintiff governments called the settlement “record-setting” and “landmark.”
The trial was scheduled to begin July 5 before the state’s Mass Litigation Panel at the Kanawha County Courthouse, but it was continued after U.S. District Judge David Faber issued his ruling in a similar case filed by the City of Huntington and Cabell County against the three companies. Faber ruled Huntington and Cabell County did not prove the distributors had created a public nuisance and awarded the plaintiffs no damages.
Huntington and Cabell County are not part of the $400 million settlement.
Faber’s federal trial took place last summer, but he didn’t issue his ruling until July 4. Settlement talks in the state MLP case heated up following Faber’s ruling, as the parties finalized the terms of the settlement just before opening statements were scheduled to begin.
The settlement, which requires the approval of the involved counties and cities, will provide funding for combating the opioid crisis and incorporates controls to ensure the funds are spent on recognized methods for abating harms associated with the opioid epidemic.
Because the state proceeded on its own in federal and state courts, West Virginia cities and counties were not able to be involved in the national settlement with the “Big Three” distributors.
The co-lead attorneys for the cities and counties – Paul T. Farrell Jr. of Farrell & Fuller in San Juan, Puerto Rico, and Bob Fitzsimmons of Fitzsimmons Law Firm in Wheeling – said the settlement means West Virginia will receive more dollars per capita than any other state and more than double its allocation share if it had stayed in the national settlement. The $400 million will be paid in over 12 years and is front-loaded compared to the 18-year payment schedule of the national settlement.
“This settlement is an acknowledgment of the downstream devastation caused by the wholesale distribution of a billion opium pills throughout West Virginia,” Farrell said. “The settlement terms also require the monies be used to abate the opioid public health epidemic which is further proof that we can impact and drive down opioid abuse and addiction with much needed resources.
“We are particularly proud of the fact that this litigation war pitted the West Virginia plaintiffs’ bar against some of the best blue-chip law firms in the country.”
Fitzsimmons agreed.
“West Virginia has been plagued by an opioid epidemic that has brought addiction, opioid use disorder, overdose, and deaths to our friends, neighbors and family,” he said. “There is not a single person in our State who has not been affected by this crisis.
“While money will never restore what has already been lost, our hope is that this settlement will help West Virginia turn the corner in its fight against this epidemic by providing critical funding and resources necessary to combat this epidemic — funding that will be paid by the drug industry and not the citizens and taxpayers of West Virginia.”
Fitzsimmons praised Farrell for his work on the case.
“This record setting settlement for the people of West Virginia is in large part the result of the tireless work, legal ingenuity, and courage of Paul Farrell Jr.,” he said. “Paul was the architect of this litigation and devoted years of his life fighting for the people of West Virginia.”
Together, Farrell and Fitzsimmons praised the state’s legal system for how the complex case was handled.
“In particular, the appointed judges of West Virginia’s Mass Litigation Panel (MLP) are to be thanked for their tireless efforts in this important litigation,” they said in a press release. “We would like to thank Judge Alan Moats, Judge Derrick Swope, Judge Joanna Tabit, Judge Jay Hoke, Judge Gregory Howard and retired Judge Christopher Wilkes for all of their tireless efforts. We would also like to thank attorney Kim Fields, who coordinates and manages West Virginia’s MLP.
“These members of the West Virginia judiciary managed, analyzed and ruled upon hundreds of motions; issued orders regarding complex and novel questions of law and evidence; and participated in multiple mediations between the parties. Most importantly, these members of West Virginia’s Judiciary insured that every person in this litigation not only had their day in court, but also had a fair day in court.”
Other members of the trial team included Mark Colantonio and Clayton Fitzsimmons of Fitzsimmons Lw Firm, Michel Fuller of Farrell & Fuller, Amy Quezon, Anthony Majestro and Christy Smith of Powell & Majestro in Charleston, Pearl Robertson and Anthony Irpino of Irpino Avin & Hawkins in New Orleans, Anne McGinness Kearse and Monique Christenson of Motley Rice in Charleston, S.C., and Peter Mougey of Levin Papantonio Rafferty in Pensacola, Florida.
Farrell, who originally is from Huntington, said he was saddened that Huntington and Cabell County are excluded from the settlement, especially because he said they used the same legal theories, witnesses and evidence that resulted in both the $21 billion national and $400 million state settlements
“The exclusion of Huntington and Cabell County is particularly painful because this community is the epicenter of the opioid epidemic and started the national litigation,” Farrell said.
West Virginia Attorney General Patrick Morrisey said the settlement will benefit the fight against the opioid epidemic.
“I’m happy to see the judicial system work as it should by benefiting West Virginia communities that have been hit hard by opioid abuse,” Morrisey said. “This settlement, along with other settlements 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, West Virginia will have the highest per capita settlement results in the nation fighting for our people. As a result of this strategy, the cooperative effort and the dedication of counsel for the cities, counties and our office, West Virginia has received the largest per capita opioid settlement in the country so far.”
Morrisey said the state has settled claims against manufacturers and related parties totaling almost $300 million. That doesn’t include outstanding cases against Purdue and Mallinckrodt pending in bankruptcy.
“We’re not done yet,” Morrisey said. “We will continue to fight to get the best results for the people of West Virginia and the funding needed to help combat the scourge created by this epidemic.”
