Greenbrier County plans to join counties and states across the country in bringing a lawsuit against both drug manufacturers and distributors for failure to report or halt suspicious orders, funneling millions of pills into West Virginia and Greenbrier County.
Attorney Ed Hill approached the Greenbrier County Commission during its regular Tuesday, June 27, meeting to outline the lawsuit, the lack of up-front costs to the county, and the consortium of six different law firms taking the reins in the fight against what Hill called “Fortune 1,500,” rather than Fortune 500, sized companies.
The goal of the lawsuits is to answer a question while at trial; “What will it take to put your community and its citizens back into the position it was in before the opioid crisis began – how much will it cost to clean up the mess?” The consortium believes that funds received should cover three broad areas: education in school systems that shows “the pills in their parent’s cupboards are just as dangerous as a heroin needle,” providing support to law enforcement and jailing, and funding of health care and additional addiction recovery facilities to rehabilitate the community.
“I have two major things I want to see come out of [the lawsuit],” said Commissioner Lowell Rose. “One was to … help the people that want to recover and help people get off of drugs. Some of these new programs, there are so many different ones. … Different people respond to different things; some therapy, some religious groups, some other drugs that help them get off the drugs they’re on. To help those we can help. The [second goal] is prosecution. To go after the distributors, the dealers, the people [who] bring drugs into the county. That’s what I want to get out of this.”
Citing negligence, false and fraudulent marketing, potential violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, and public nuisance, the filed and soon to be filed civil complaints against drug manufacturers and distributors is summarized best by the consortium in prepared materials Hill brought to the meeting:
“The manufacturers and distributors of prescription opioids have created this opioid epidemic by generating a population that is physically and psychologically dependent on opioids (the demand) and conspiring to provide floods of prescription opioids which are not medically necessary and will ultimately become available for illicit use or sale (the supply).”
“These manufacturers and distributors have been repeatedly investigated and sanctioned by regulators for abdicating their legal duties. For example, within the last several years alone, the largest opioid distributors in the nation, as well as certain manufacturers, have been fined hundreds of millions of dollars for their failure to report suspicious orders to the Drug Enforcement Agency (DEA) and prevent diversion of these dangerous drugs. Many of these same defendants have been subject to prior litigation by states and counties arising out of the prescription opioid crisis.”
“However, the fines and prior litigation have not stopped the flood of opioids into our communities and have provided little – if any – relief to our communities.”
“For years, the distributors and manufacturers of prescription opioids have failed to report or halt suspicious orders, while funneling millions of pills into our communities.”
Included in the materials are a list of manufacturers and distributors of three drugs, oxycodone, hydrocodone, and fentanyl, that the consortium says “knew” and “are responsible” for a rigged supply and demand system. The manufacturers listed are Purdue Pharma, Endo Health Solutions, Janssen Pharmaceuticals, Mallinckrodt, Cephalon, Actavis, Insys Therapeutics, and Teva Pharmaceuticals. The distributors list includes what the consortium refers to as the “Big Three;” McKesson Corporation, Cardinal Health, and AmerisourceBergen Drug Corp. In addition, wholesale distributors Miami-Luken and Masters Pharmaceuticals and pharmacy distributors Walmart, CVS, Walgreens, and Rite Aid are listed.
“No one likes to enter into a lawsuit,” said Commissioner Michael McClung “… Sometimes it’s required, sometimes it’s necessary, and sometimes it’s advisable. It is blatantly obvious that we have a huge, huge problem, not only in this community but in our society. We are on the verge of losing a large portion of a generation. We’re supposed to have a war on drugs; if we do, we’re not doing well. We’re losing that one, or have already lost it. I’m not naive enough to think that the action we are proposing is going to be a cure for the problem we have, but with an issue that is as important and as desperate as this one, I feel like we need to do something. If this is a tool that can be used to turn some part of this problem around, then I suggest that we use it.”
County Commission President Woody Hanna stated that Rose was the driving “nudge” for the commission to look into a lawsuit to attempt to recoup the tremendous costs associated with these drugs and their aftereffects; according to the prepared materials, four in five new heroin users started by misusing prescription painkillers, due to similarities between opioid drugs, which includes heroin, oxycodone, hydrocodone, and fentanyl.
“My idea on this was the tremendous cost to the county, the people of the county, the prosecutor’s office, the sheriff’s office, much of our cases are either people arrested for selling drugs, using drugs, stealing from someone to get money to buy drugs,” Rose said. “It affects our county budget: it’s the No. 1 drain on the county. If we didn’t have this problem, we could probably eliminate half of our property taxes, because that’s where our money goes. We’ve been able to do a lot of things with the assistance of the prosecutor, the sheriff, the judges, the day report, home confinement, and everything to get our bills down, but we were budgeting, [several] years ago when I was on the commission, $750,000 a year and it was still about $700,000 a year when I came back.”
The consortium recently discovered that, in a six-year time period, approximately 780 million pills were sent to West Virginia, whose population is approximately 1.8 million, according to Hill. This is an estimated 433 pills per West Virginian over those six years. In addition, according to the materials provided by Hill, although there are over 800 registered wholesale drug distributors, the Big Three own 85 percent of the market share, generating over $100 billion in revenue annually.
The suit would join several multidistrict litigation cases (MDL), all overseen by one judge. Hill explained that the cases were going into a process called a bellwether trial.
“Bellwether trials in an MDL choose those cases that are to have the facts that are representative of the facts in all the other cases,” explained local lawyer Robert Frank, who spoke in favor of the county entering the litigation. “Defendants choose some cases, plaintiffs choose some cases, and they sit down with the judge to find the cases that are the most representative of everyone else’s cases, then they try those, the bellwethers, so both the defendants and plaintiffs can understand how juries are going to react to the evidence. This allows both sides to understand the case.”
Frank also spoke to the effect of the opioid crisis on his practice and his wife’s practice as a physician.
“As a lawyer, when I first came to this town, I was asked to do abuse and neglect cases,” Frank explained. “’Well, I don’t do abuse and neglect cases, I do pharmaceutical litigation, I do civil rights litigation,’ but the problem in this town is so bad that any lawyer who had a license, anyone that could practice, the bench expected us to step up, and to represent folks because of this crisis. Until you stand in the courtroom and see case after case after case of young parents who are losing their children because of this epidemic, I’m not sure you really see it, unless you’re like my wife. [Unless] you’re a physician. I remember her as a resident working night after night at Greenbrier Valley Medical Center, working in the obstetrics unit, working in critical care, in various floors, night after night after night are people coming in with overdoses, babies being born addicted, and her coming home with tears in her eyes about what’s going on in the hospital. We lawyers see it, and the health care providers see it even more than we do.”
Hill and the provided materials pitched the consortium as the best possible way for Greenbrier County to recoup financial losses from these major companies and begin to create the right environment to heal the damage.
“This consortium was not cobbled together to fight a single battle,” reads a pamphlet brought to the commission by Hill. “Recognizing that the target defendants are some of the richest corporations in the country, we are prepared to go the distance and hold them accountable. … Large cases and powerful defendants are nothing new to us. We have fought and won cases against giants such as Big Tobacco, BP, Bayer, Merck, and DuPont, to name just a few. Whether large or small, we are committed to representing local governments – cities, towns, and counties – and ensuring that they each are justly compensated for the public health crisis and costs imposed on them by the manufacturers and distributors of opioids.”
The pitch also included a surprising fact about the potential costs: no upfront fees. Hill explained that the lawsuit would cost the county a “25 percent contingency fee,” and cap the limit on expenses, such as the hiring of experts to testify, to 10 percent over the fee. This means that, at worse, the lawsuit would cost the county 35 percent of any funds received in a settlement or payout, and would cost the county nothing up front and nothing if the lawsuit fails.
“No up-front costs,” read the materials provided by Hill. “Our consortium will front all costs of the litigation. Our clients pay no fee unless we recover [funds from the manufacturers and distributors].”
The Greenbrier County Commission agreed to join the lawsuit and sign the resolution to do so after the Greenbrier County Prosecuting Attorney Patrick Via reviews the agreement.
The Greenbrier County Commission regularly meets on the second and fourth Tuesday of each month, at 10 a.m. and 7 p.m., respectively.
Read more in the Wednesday, June 27, edition of The West Virginia Daily News.
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