CHARLESTON – A Kanawha Circuit judge has issued an order allowing more infants to be added to the docket in a case involving children born addicted to opioids.
The attorneys filed the motion September 1 in Kanawha Circuit Court on behalf of a Jane Doe plaintiff who is the mother of one such child. They seek to have the authorization for guardians ad litem to provide notice of pending Neonatal Abstinence Syndrome actions before the state’s Mass Litigation Panel and to serve for about 4,000 children whose identifying information remains in the West Virginia Birth Score group.
On September 23, Kanawha Circuit Judge Duke Bloom entered his order appointing guardians ad litem for the purpose of receiving contact information associated with the children maintained by the state Department of Health and Human Resources' Birth Score Program. Those appointed will work to send notices to guardians of children about the proceedings before the MLP to tell them the children may have claims to assert and could receive funding to help with the condition. The request comes after the state Supreme Court Chief Justice John Hutchison transferred the matter to the MLP.
diTrapano
“It is in the best interest of the minor children identified in the West Virginia Birth Score Program,” Bloom said in his order, noting the attorneys for the plaintiffs and the state DHHR agreed the change should be made.
“We are so pleased that Judge Bloom has ordered the notice to guardians of children born with NAS we sought concerning the referral of cases affecting such children to the West Virginia Mass Litigation Panel," attorney Booth Goodwin told The West Virginia Record. "However, it’s important to note that reporting to the Birth Score Program only began in 2016. Children born before then or children whose Birth Score information is no longer accurate need notice, too.
"We are hopeful that this development will help spread the word that guardians of children affected by opioids need to act now to protect the rights of their children.”
Information about infants born with a diagnosis of NAS began to be reported to the West Virginia DHHR’s Birth Score Program in October 2016, and information about in utero substance use began to be reported in February 2020. Since reporting began, more than 4,000 infants have been reported to the Birth Score Program as having been diagnosed with NAS at birth.
The notices ordered by Bloom will start going out soon and must be completed by December 15. But families of children affected by opioids who believe they might have a claim can call 1-833-682-3060 or visit stopnas.com.
“We are excited that our grandparents, foster parents, and guardians who have been taking care of these babies will finally get some traction in court,” Dante diTrapano, another attorney representing the plaintiffs, told The Record. “Our group represents close to 600 NAS babies, and each of their stories are heartbreaking.”
In 2020, a New York federal bankruptcy judge ordered Purdue Pharma to include the West Virginia NAS Class Bankruptcy Claim in a mediation so the class still could recover monies.
Together, these attorneys represent just under 500 NAS children in West Virginia (566 including non-residents) who also have claims against the defendants. The defendants are the West Virginia Department of Health and Human Resources, DHHR Secretary Bill J. Crouch, the West Virginia Bureau for Public Health, BPH Commissioner Dr. Ayne Amjad and the West Virginia Office of Maternal Child and Family Health.
According to the complaint, West Virginia has among the highest rates of infants born with NAS, which can have lifelong consequences for the infants.
On August 9, Hutchison signed an order August 9 referring cases involving about 600 NAS children to the MLP. Those lawsuits are filed on behalf of children born addicted to opioids against various drug manufacturers and distributors.
DiTrapano said he and his team of attorneys have been working for years “to get justice for these most innocent and vulnerable victims of the opioid epidemic, but the cases have languished behind those brought on behalf of governmental entities.”
“We are so pleased that Chief Justice Hutchison has answered the call to refer the cases for these children to the Mass Litigation Panel, and we are hopeful that the Mass Litigation Panel will provide these children their own track so that they may receive justice as quickly as possible,” Goodwin previously said. “The quicker they receive justice, the better the outcomes we will see for these most innocent victims of the opioid epidemic.”
The state MLP consists of seven active and senior status circuit judges, and its purpose is to manage and resolve similar litigation that involves large numbers of plaintiffs or defendants.
“These judges — from across our state — are obviously tuned into the challenges faced by children exposed to opioids as well as the damage caused by those responsible for the opioid epidemic,” Goodwin said. “Unfortunately, there are likely thousands of children in our state who were born with neonatal abstinence syndrome.
“Bringing and prosecuting thousands of individual cases outside the Mass Litigation Panel would take years to resolve. These children should not have to wait years. That is why we sought this referral and are confident that the Mass Litigation Panel will see the need for an express track to justice for these children.”
The attorneys involved in these cases are diTrapano and Stuart Calwell of Calwell Luce diTrapano, Booth Goodwin, Benjamin Ware and Jeffrey Vollmer of Goodwin & Goodwin, P. Rodney Jackson of P. Rodney Jackson and Associates and W. Jesse Forbes of Forbes Law Offices PLLC.
In addition to their cases, three other law firms have filed similar cases against the same defendants. Those firms are New Taylor & Associates in Beckley, The Miley Legal Group in Clarksburg and The Manchin Injury Law Group in Fairmont.
“The only manageable forum for such a large amount of litigation on behalf of individual children with NAS totaling over 500, is the Mass Litigation Panel,” the plaintiffs’ attorneys wrote in their motion seeking referral to the MLP. “The NAS crisis among West Virginia children has been so pervasive that in response to the high rate of NAS cases in West Virginia, the West Virginia Department of Health and Human Resources began in 2016 to track and keep data related to NAS children and currently possesses a list, known as the West Virginia Birth Score Registry, identifying some 4,000 infants born after October 2016 with NAS.”
Parents and guardians of children born with opioid dependency who believe they might have a claim are asked to call 1-833-682-3060.
Kanawha Circuit Court case number 22-P-202 (West Virginia Supreme Court of Appeals case number 22-MLP-02)