CHARLESTON – After a statewide legal reform group criticized attorney fees of more than $141 million for the state opioid litigation, West Virginia Attorney General Patrick Morrisey said the criticism was “absurd” and “flat-out asinine.”
On September 21, Common Benefit Fund Commissioner Christopher C. Wilkes filed a 31-page document detailing the breakdown of how lawyers and law firms will split the $141,057,900 from the attorney fee fund. That total is 15 percent of the gross recovery of settlements from claims in the consolidated litigation. All contingency fees and court costs also will be paid from that amount.
Wilkes was appointed by the state Mass Litigation Panel, which has handled the state opioid litigation, to oversee the funding aspect of the case.
Thomas
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On September 25, West Virginia Citizens Against Lawsuit Abuse issued a statement critical of the amount and the contracts Attorney General Patrick Morrisey’s office had with outside counsel in the case.
“The more things change, the more they stay the same in West Virginia with respect to personal injury law firms cashing in big through outside counsel contracts with the Attorney General’s office,” WV CALA spokesman Greg Thomas said in the press release. “‘$141 million in attorney's fees’ is not a headline I expected to see in our state in 2023.”
Later in the day, Morrisey’s office answered with a statement to The West Virginia Record disputing Thomas’ comments.
“It’s absurd and flat-out asinine for an uninformed and conflicted individual to give his take on something he knows nothing or very little about,” Morrisey said in the statement. “Learn the facts before making any assumptions.”
Morrisey said his office negotiated one of the lowest – if not the lowest – fees rates for a state in the nation on the opioid litigation. He also said he has been concerned about the amount of settlement money that would go to attorneys.
The AG’s office negotiated with its outside counsel for a contingency fee “far below the standard” set forth in state code. That negotiated figure was 7.76 percent, which is just more than half of the 15 percent being recommended by Wilkes.
“I am troubled by the aggregate amount of attorney fees that will be paid from the settlements, which includes cities and counties,” Morrisey told The Record. “Unfortunately, we don’t control the amount of the local contracts under the law, although we strongly urged the court to follow our state-based, lower-fee model which would have resulted in millions of additional dollars targeting the drug epidemic.”
Morrisey said his hope was that citizens would benefit from the money with the lower negotiated fees.
“Unfortunately, by awarding fees totaling 15% of the settlements, the full value of those negotiations will not be realized,” he said.
Thomas also compared the actions to those that occurred when former AG Darrell McGraw was in office. WV CALA often butted heads with McGraw about his use of outside counsel – especially ones who contributed to his election campaigns – and the fees they were awarded.
“For years, former Attorney General Darrell McGraw doled out millions of dollars in contracts to his personal injury lawyer campaign contributors — a practice that didn’t stop with his successor (Morrisey),” Thomas said. “While the attorneys certainly did a lot of work, tens of millions of dollars going to several different personal injury law firms, including out-of-state firms, is excessive.
“The personal injury lawsuit industry is alive and well in West Virginia, despite the Legislature passing dozens of legal reform bills and the many positive changes within the state’s appellate courts.”
Thomas said WV CALA hopes the Legislature will take a closer look at the issue.
“We hope the Legislature will do a thorough review of these contracts and the fees being paid to avoid any such windfall for a handful of attorneys in the future. McGraw may be gone, but the gravy train for the personal injury lawsuit industry is still running right through Attorney General Morrissey’s office.”
In his filing, Wilkes noted the complexity of the litigation.
“The commissioner finds that this amount is fair, reasonable and equitable to the clients, the lawyers and the general public in light of the unique and novel contours of this case,” Wilkes wrote in his September 21 filing. “The commissioner further believes this amount strikes an appropriate and careful balance between the unparalleled complexities and high-risk involved in this litigation while ensuring that sufficient funds are available to address and abate the opioid crisis in our state.”
The statewide global settlement total is more than $940 million. All 55 counties and almost every municipality took part in the litigation. The common benefit fund for the opioid litigation was created in 2021 by the state Mass Litigation Panel to provide “a single process for attorneys’ fees and case costs.”
The Fitzsimmons Law Firm in Wheeling will receive $22.5 million, and the firms of Farrell & Fuller and Powell Majestro will receive a combined total of $20.15 million. Also, because the law firms of Motley Rice and The Webb Law Centre were appointed special assistant attorneys general in the consolidated litigation, their combined aggregate attorney fees are capped at $50 million.
The filing lists 18 other attorneys and firms that will receive anywhere from $15,000 to $2 million.