Settlement talks have commenced in West Virginia.
In Charleston this month, talks of settling all of West Virginia’s opioid lawsuits are underway. Settlement negotiations were ordered for state-based cases by a state judicial panel and they mark the first time a state has decided to try and resolve all of its state and federal opioid cases without being part of the consolidated case in Cleveland. Huntington, WV, based attorney Paul T. Farrell Jr. is leading the discussions.
All West Virginia plaintiffs have proposed a $1.25 billion settlement, according to Farrell. Attorney’s fees would be awarded separately and determined by a panel of West Virginia Judges overseeing the state’s cases. West Virginia Attorney General Patrick Morrisey may also choose to make his own settlement with some defendants.
“What that means is, we have all decided to speak with one voice and to negotiate separately from the national scene with the defendants,” Farrell said.
The plaintiffs have contended the defendants “breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the states and fueled the opioid crisis through aggressively promoting their products.”
From 2006 to 2014, “1.1 billion pain pills were supplied to West Virginia, with 261 million coming from distributor Cardinal Health, 172 million from McKesson and 169 million from AmerisourceBergen,” according to state statistics. The number of pills available in WV dropped over the years, and many addicts turned to street drugs instead, like heroin, causing overdose deaths to go through the roof.
In 2017, more than 70,000 people in the United States died from drug overdoses, with about two-thirds stemming from use of a prescription or illicit opioid, according to the Centers for Disease Control and Prevention (CDC). The agency reported West Virginia had the highest overdose rate in the country during that year.
As talks started to settle the thousands of nationwide claims last year, West Virginia was one of the first states to reject a proposed $18 billion national settlement, which would have amounted to $8.9 million per year, or about $160 million total over the eighteen years, for the state. As part of that deal, fifteen percent of that would have gone to attorneys general and counties each, with the remaining 70% going into a recovery fund.
Farrell said bluntly, “The original national deal would have West Virginia suckling from the hind teat for nearly two decades.” He added, “We don’t have 18 years. If we were to wait 18 years, that would be an entire other generation lost to the epidemic. That’s why we want the money. Now.”
There are currently 95 lawsuits before the West Virginia panel, and more than 275 West Virginia-originated lawsuits are filed in federal court. The state’s panel includes five circuit court judges: Alan Moats, of Barbour and Taylor counties, and Derek C. Swope of Mercer County, who decides case merits, as well as Debra Scudiere, of Monongalia County; Jay M. Hoke, of Boone and Lincoln counties; and Joanna I. Tabit, of Kanawha County, who decides resolution issues.
The first order of business in a recent meeting with the judges was to have open discussions separately for the state, and the second was to make an offer the attorneys were comfortable forwarding to their clients.
“The important thing is that these are West Virginian lawyers representing the West Virginia communities and cities,” Farrell said. “We’ve agreed that it’s in the best interest of West Virginia to speak with one voice to get the largest amount of money as quickly as possible. And then we’re going to rely upon the West Virginia family to decide what’s in the best interest of West Virginia.”