WV counties fight to return pill-dumping lawsuits to local courts

By Eric Eyre, Gazette Staff

Lawyers for towns and counties across Southern West Virginia want lawsuits against prescription painkiller shippers heard in county courthouses, overseen by local judges and decided by jurors who have watched the opioid crisis decimate their communities.

"A plague is a better description of this problem," Leticia "Tish" Chafin said during a hearing Thursday in federal court. "This is a West Virginia issue."

The out-of-state drug distributors want to keep the lawsuits in federal court, where they believe they'll get a better shake. They say there's too much risk in trying the case in a region showered with pain pills, where overdose death rates are some of the highest in the nation.

"One can easily see the difficulty of obtaining a fair trial in one of those jurisdictions," said A.L. "Al" Emch, who represents Pennsylvania-based drug wholesaler AmerisourceBergen.

At Thursday's hearing before U.S. District Judge David Faber, lawyers for the towns and counties argued that Faber should send the cases back to West Virginia circuit courts, because the state Board of Pharmacy has been named as a defendant with the distributors. The counties allege that the pharmacy board shirked its responsibility to require drug wholesalers to report suspiciously large orders of pain pills placed by pharmacies.

Over a six-year period, wholesalers sold 28 million painkillers in Mercer County, and another 9 million in Lincoln County, Chafin said. The shippers dumped 12 million doses of the painkiller hydrocodone on the town of Kermit, population 370, in Mingo County, she said. The shipments caused "catastrophic damage" to rural communities, said Chafin, whose firm represents more than a dozen towns and counties suing the distributors.

Earlier this year, Faber dismissed a Mercer County doctor from the County Commission's lawsuit against the distributors, multibillion-dollar companies that transport drugs from manufacturing facilities to warehouses and on to pharmacies.

The distributors' lawyers said the counties and towns shouldn't be allowed to add the pharmacy board to the complaint. State law requires lawsuits against state agencies like the Board of Pharmacy to be filed in Kanawha County Circuit Court, in Charleston, not in counties spread across the state.

The pharmacy board's primary role is to ensure pharmacies store and secure controlled substances properly — and lawyers on the opposing side haven't raised any complaints on those grounds, according to the drug company lawyers.

"This is just a last-ditch effort to get out of federal court," Emch told Faber. "The Board of Pharmacy ought not be in this case."

This year, states, counties, cities, towns and American Indian reservations across the United States have filed more than 80 lawsuits against drug wholesalers. A congressional panel is investigating the companies, which include Cardinal Health, McKesson, AmerisourceBergen, Miami-Luken and Masters Pharmaceutical.

The lawsuits and investigation came on the heels of a Gazette-Mail report that revealed drug wholesalers showered West Virginia with 780 million doses of hydrocodone and oxycodone between 2007 and 2012, a period when more than 1,700 people fatally overdosed on those two powerful painkillers.

Earlier this week, a Washington Post/"60 Minutes" investigation uncovered how drug wholesalers lobbied Congress to pass a law that neutralized the Drug Enforcement Administration's effort to sanction the companies.

A congressman from Pennsylvania complained that the DEA had treated the distributors like "illegal narcotics cartels," according to the report. On Monday, the lawmaker withdrew his name from consideration as President Donald Trump's nominee for national drug czar.

Faber said he would take Thursday's arguments under advisement and issue a ruling on whether to remand the West Virginia lawsuits from federal court back to state court — where they initially were filed — at a later date.


3/24/2017 - Three more lawsuits have been filed against the drug distributors who allegedly flooded the state with pain killers and caused the opioid epidemic across the state.

Calhoun County and the towns of Sophia and Milton filed their lawsuits against AmerisourceBergen, Cardinal Health and McKesson Corporation. The lawsuit was approved by the Calhoun Commission.

The lawsuits allege the drug distributors, local pharmacies and doctors have caused and contributed to the opioid epidemic and will continue to cause Calhoun County, Sophia and Milton to disburse substantial sums of public funds to deal with the consequences of the opioid epidemic that was fueled by the defendants' negligent/illegal, reckless, and malicious actions in flooding the state with highly addictive prescription medications without regard for the adverse effects.

Milton Mayor Tom Canterbury, the Calhoun County commissioners and Sophia Mayor Danny Bar said the cost to the towns and the county has been affected them both financially and spiritually.

The suits seek damages for reimbursement for Sophia, Milton and Calhoun County, including, but not limited to, increased expenses of drug abuse treatment program, prevention and training costs, costs of the drug Naloxone, as well as education, training and use, medical care and hospitalizations, increased costs of law enforcement and nuisance damages.

The lawsuit alleges that the towns and the county were flooded with opioid pain killers from 2007 until 2012.

Rusty Webb is representing the towns and the county. He is also representing many other cities and counties who have filed lawsuits against the drug distributors.

The state settled its lawsuit with the distributors earlier this year for $47 million.

More than 840 West Virginians fatally overdosed on drugs last year — a record number — and additional deaths are expected to be added to the total in the coming weeks.

Fatal overdoses related to fentanyl, an opioid that's 100 times stronger than prescription morphine, have fueled the increase.

West Virginia already has the highest drug overdose death rate in the nation.

Hospitals use fentanyl to sedate patients before surgery. Doctors also prescribe the drug to alleviate very severe pain.

But the fentanyl that's killing people in West Virginia and numerous other states comes in a powder form — or compressed into pills in underground labs.

Fentanyl depresses a person's respiratory system. Drug traffickers often mix fentanyl with heroin.

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