West Virginia May Go to Court In Lieu of Low Opioids Settlement (1)

Nov. 14, 2019, 8:48 PM; Updated: Nov. 14, 2019, 11:17 PM

West Virginia communities are pushing back against state attorneys general who have sought to negotiate a global settlement in federal opioid litigation that would largely cut out the state widely known as ground zero of the crisis.

“We will not be forgotten, we will not be ignored,” said Paul Farrell, Jr., co-lead council representing more than 2,700 cities and counties in the multidistrict litigation, including six West Virginia Counties.

“We will either have a seat at the negotiation table or we will have our day in court,” added Farrell, who is based in West Virginia.

Four attorneys general in October proposed a $48 billion global settlement that they say would effectively end all opioid liability for the drug distributors and other defendants. Farrell said the deal would amount to 0.001335% of the total payout of the $48 billion for West Virginia—a nonstarter for his clients.

Cases brought by the city of Huntington and Cabell County, W. Va., have been named as the next bellwether, or test cases, to set the tone for future negotiations between the cities, counties, and Native American tribes bringing the lawsuits. Lawyers are waiting for federal Judge Dan Polster to schedule the case and send it back to a federal court in West Virginia.

Efforts by state attorneys general to inject themselves into negotiations in the multidistrict opioid litigation have led to tension with the lawyers representing municipalities across the nation.

Attorneys general from North Carolina, Tennessee, Texas, and Pennsylvania—have led efforts to negotiate with opioid distributors, arguing they are in a position to resolve their own state cases as well as the multidistrict litigation through a global settlement.

“I affectionately refer to them as the four bullies,” Farrell said.

‘Four Bullies’

Samantha Fisher, a spokeswoman for Tennessee Attorney General Herbert Slatery III, said the states continue to engage in productive conversations with other involved parties. “The goal of the settlement is to provide resources as quickly as possible to every community that has been damaged by the opioid epidemic, including the citizens of West Virginia,” she said.

And Laura Brewer, a spokeswoman for North Carolina Attorney General Josh Stein, added, “very constructive conversations are happening” in settlement negotiations and denied that communication has broken down. The Texas and Pennsylvania attorney general offices declined to comment.

The problem is that West Virginia Attorney General Patrick Morrisey earlier struck separate deals with three major opioid distributors on behalf of the state totaling $73 million.

That figure that has been criticized as far too low to address the crisis in one of America’s hardest-hit states. However, the four attorneys general have argued behind closed doors that West Virginia has already received its payout and that cities and counties within the state are not entitled to any more money as a result, Farrell said.

“We’re not going to follow the attorneys general,” he said. “And they can’t make us.”

Morrisey on Oct. 18 tweeted: “If a global opioid settlement is reached, payment for each litigant should reflect the severity of the opioid problem faced by impacted entities. Payments based almost entirely on raw population—having NOTHING to do with severity—are morally bankrupt & should be a non-starter.”

Morrisey’s office did not respond to a request for comment.

Ultimately, the actions by the four attorneys general amount to usurping the authority of the parties who are really in power to negotiate, Farrell said.

Hunter Shkolnik, an attorney representing West Virginia cities and counties in separate state court actions who is also on the executive committee for the federal multidistrict litigation, said the attorneys general can’t guarantee to the defendant companies that their liability is over.

“They don’t have the ability to deliver a settlement and unless they come to the table with the 100 million-plus people in the cities and counties we represent, they’re not going to be able to get a settlement,” he said.

The developments are the latest in the ongoing opioid litigation to raise questions about Morrisey’s prior settlements with drug wholesalers and distributors.

Since 2016, Morrisey has reached a total of $84 million in settlements with 13 different companies, the lion’s share coming from Cardinal, AmerisourceBergen, and McKesson. From 2006 to 2012, those three companies delivered 198.7 million, 131.4 million, and 123.4 million opioid pills to West Virginia, respectively.

(Adds comment from Tennessee attorney general's office in ninth paragraph.)

To contact the reporter on this story: Valerie Bauman in Washington at vbauman@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Randy Kubetin at rkubetin@bloomberglaw.com

To read more articles log in.

Learn more about A Bloomberg Law subscription.