CHARLESTON – The state Mass Litigation Panel has denied West Virginia Attorney General Patrick Morrisey’s objection to its order approving 15 percent fees for attorneys that worked on the state opioid litigation.
The MLP issued its order October 11, less than two days after it had issued its approval of the fee recommendation by Christopher Wilkes, commissioner of the Common Benefit Fund in the state’s opioid litigation. Just hours after that approval, Morrisey’s office filed its objection.
“The court finds the objections to be without merit and are, therefore, denied,” the one-page MLP order states. It was signed by opioid litigation Lead Presiding Judge Alan D. Moats and by Presiding Judge Derek C. Swope.
Morrisey said he was disappointed with the decision.
“We respectfully disagree with the court’s determination on this matter and continue to believe that more of the settlement should go toward helping the citizens of West Virginia heal from the opioid epidemic," he said in a press release. "I will continue fighting this drug menace with every fiber of my being and will do my best to ensure that another generation doesn’t fall prey to senseless death.”
Last month, Wilkes issued his recommendation stating that attorneys and law firms that worked on the West Virginia opioid litigation will split more than $141 million from the attorney fee fund. That amount is 15 percent of the gross recovery of settlements from claims in the consolidated litigation. That total would be used to pay all contingency fees, attorney general outside counsel contingency fees, common benefit fees and approved litigation expenses in the civil action.
The Fitzsimmons Law Firm in Wheeling will receive $22.5 million, and the firms of Farrell & Fuller and Powell Majestro would 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 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.”
Soon after Wilkes issued his recommendation, Morrisey raised concern about the amount.
“While we believe that a substantial amount of time, effort, and work by numerous firms has led to the recovery in these matters, the payment of 15 percent of the gross settlement amounts in attorney fees is not appropriate in this matter,” the objection, field October 9, states.
Morrisey has said he was concerned about the amount of the settlement that would go to attorneys. That is why he said his office negotiated with its outside counsel for a contingency fee far below the standard set forth in state code for all work performed for the state.
Citing figures he also included in his objection, the AG said that negotiated number is 7.76 percent, which he says is one of the lowest – if not the lowest – attorney fees in the nation. He also said the current recommendation of $141 million could balloon to more than $150 million.
“I am troubled by the aggregate amount of attorneys’ fees that will be paid from the settlements, which includes cities and counties,” Morrisey said. “It was my hope that the people of West Virginia would benefit from the money we were able to save by negotiating for lower fees.
“Unfortunately, by awarding fees totaling 15 percent of the settlements, the full value of those negotiations will not be realized.”
Morrisey’s office says the $141 million figure doesn’t include the additional federal Multi District Litigation assessment of 7.5 percent of the $400 million aggregate settlement reached with the distributors. Adding that, the office says the real amount being paid in fees and costs for the state’s opioid litigation becomes $171,057,900, which is 18.2 percent of the settlement.
“Such an amount is wildly excessive and will directly reduce the amount of money that can be used to save people’s lives,” the objection states.
After Wilkes issued his recommendation, the leader of a statewide legal reform group criticized Morrisey’s office for the contracts it 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,” West Virginia Citizens Against Lawsuit Abuse 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 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.”
After Morrisey filed his October 9 objection, Thomas praised Morrisey's "very well-reasoned" complaint.
"Giving $141 million to attorneys for their “work” on this opioid lawsuit is absolutely outrageous," Thomas said. "Much of these funds should have been given to the people affected by opioid abuse, not to out-of-state Democrat personal injury lawyers.
"Attorney General Patrick Morrisey deserves credit for a very well-reasoned complaint that lays out a plan to ensure that the personal injury lawyers get paid for their work, but more money needs to get in the hands of the victims and their communities rather than out-of-state lawyers.”
Thomas said WV CALA hopes the judges overseeing the case reconsider their latest order following Morrisey's objection.
"The judges in charge of the case issued an order approving the $141 million in legal fees," Thomas said. "The judges’ order was issued before Attorney General Morrisey filed his complaint. We hope that lots of questions are asked about this process and why a decision was made to approve the attorneys’ fee award before the previously schedule hearing on Friday, October 13th.
"While the Legislature will get another chance to fix this broken process in January, the lawyers and judges in this case need to do everything they can to get as much money as possible to the victims. This is a once in a lifetime settlement that could make a real difference in the lives of many West Virginians.”
The AG's objection was signed by Deputy AG Ann L. Haight, Deputy AG Vaughn T. Sizemore, Assistant AG Laurel K. Lackey and Assistant AG Abby G. Cunningham.
Kanawha Circuit Court case number 19-C-9000
