CHARLESTON – Several cases involving children born addicted to opioids have been removed to federal court despite the plaintiffs’ contention the defendants’ logic for the move is flawed.
On October 12, defendants Johnson & Johnson and Janssen Pharmaceuticals filed a motion to transfer 15 cases to U.S. District Court in Charleston from the state Mass Litigation Panel that had been transferred to the MLP in September from Marshall Circuit Court in the state’s Northern Panhandle.
Two days later, the plaintiffs responded to the transfer request.
“While transfer of these cases will ultimately be appropriate once the issued stay is lifted after December 30, 2022, defendants’ effort to quickly transfer these cases now is improper,” the response stated. “Not only did defendants fail to request that the stay be lifted for purposes of addressing their transfer notice, it is evident that defendants have ulterior motives in seeking prompt transfer of these cases.
“Plaintiffs believe that it is defendants’ ultimate intent to seek removal of these cases to the United States District Court for the Southern District of West Virginia given that prior removal efforts in the Northern District (where Marshall County cases are pending) failed. Otherwise, what’s the hurry?”
The cases previously had been removed to federal court in the Northern District, but District Judge John Preston Bailey remanded them back to state court. Once the cases were removed to the state MLP in Kanawha County, a removal to federal court would mean they would be heard by a Southern District federal judge.
“Defendants appear to be jockeying to attempt to strip this panel (MLP) of its jurisdiction to adjudicate these cases by removing them to federal court,” the plaintiffs argue in their response. “Plaintiffs submit that this court should view defendants’ efforts with a jaundiced eye.”
On October 18, the defendant companies filed a reply.
“The panel should grant Janssen’s motion for the simple reason that ‘plaintiffs agree that these cases ultimately should be transferred to the MLP,” the reply states.
The next day, Judges Alan Moats and Derek Swope, lead opioid judges for the state MLP, issued the order granting motion to transfer NAS cases from Marshall County to Kanawha County and the MLP.
On October 26, 15 of the cases were removed to federal court with the defendants’ arguing that the state Board of Pharmacy was added as a defendant only to ensure the cases would be heard in state court instead of federal court. They were assigned to U.S. District Judge David Faber.
“Here, as in these other cases, the diversity-defeating defendant — the Board of Pharmacy — has been fraudulently joined because ‘there is no possibility that the plaintiff would be able to establish a cause of action against’ the board,” the defendants’ notices of removal state. “Even if it were not absolutely immune, the Board of Pharmacy would still have qualified immunity from precisely the kind of claims plaintiff alleges here.”
On October 28, the plaintiffs filed emergency motions to remand all of the cases back to state court and the MLP, maintaining that the question of law is with the state under state Supreme Court precedents.
“The removing defendants’ Notice of Removal asserts only that the West Virginia Board of Pharmacy was fraudulently joined,” the remand motions state. “The doctrines of absolute immunity and qualified immunity do not bar plaintiffs’ claims against the BOP.”
All of this follows Kanawha Circuit Judge Duke Bloom issuing an order last month 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.
“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.
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.
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.
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.
The attorneys representing the plaintiffs in these cases are Dante 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, Thompson Barney Law Firm in Charleston, The Miley Legal Group in Clarksburg and The Manchin Injury Law Group in Fairmont.
Johnson & Johnson and Janssen are being represented by Marc Williams, Robert Massie, Shaina Massie and Alexander Frampton of Nelson Mullins in Huntington.
U.S. District Court for the Southern District of West Virginia case numbers 2:22-cv-00471 through 2:22-cv-00485 and 2:22-cv-00487 (Kanawha Circuit Court case number 22-P-202 and West Virginia Supreme Court of Appeals case number 22-MLP-02)