By JIM MCCONVILLE
The Journal
Editor’s note: With days left in the 2017 legislative session, West Virginia’s budget situation remains murky, with competing proposals from Gov. Jim Justice, the Republican leadership in the House and Senate and the House Liberty Caucus under consideration. The Journal has taken a three-day look at the budget proposals, West Virginia’s current tax structure as it compares to our border states and how trying something totally different such as eliminating the personal income tax could help — or hurt — the state’s budget picture and business climate.
MARTINSBURG, W.Va. — The Berkeley County Council is considering joining a class action lawsuit against opioid manufacturers, which if successful, could provide the council funds for its own fight against opioid addiction in the county, officials said during the council meeting on Thursday.
Attorney Stephen Skinner, principal of Charles Town-based Skinner Law Firm, appeared before the council to gauge its interest in joining a lawsuit his firm seeks to file against opioid wholesalers in the state.
Skinner said his firm was approached by lawyers who are handling the majority of county lawsuits in the Northern Panhandle to see if they would be interested in approaching the Berkeley County Council — among other municipalities in the Eastern Panhandle — to see if it would be interested in signing on to a potential lawsuit against opioid manufacturers.
“The (lawsuits) are happening — we have several that have already been filed,” Skinner said. “To what extent do you want to assert Berkeley County’s claims in the lawsuit?”
If such a lawsuit is successful, Berkeley County could receive a portion of any proceeds won with the suit, Skinner said.
“It could be used for whatever the council wants in terms of how we combat the opioid epidemic,” Skinner said. “This could be found money for the council.”
According to Skinner, there would be little downside to such a lawsuit.
“That’s because the Skinner Law Firm absorbs the risk of loss — or no recovery, or defeat — including in terms of the advanced costs, “Skinner said. “A lawsuit like this will cost hundreds of thousands of dollars. There is little to any financial risk to the council to be party to the lawsuit in the Eastern Panhandle.”
Lawsuits against opioid wholesalers are being pursued in both northern and southern West Virginia, Skinner said.
According to Skinner, inaction by opioid manufacturers contributed to West Virginia’s opioid epidemic.
“If you look at a state with1.8 million people, the idea is that all of us would had to have several prescriptions in order to count up the number of pills that were sold in the state,” Skinner said. “Under the law, they had an obligation to recognize what was going on and put in place mechanisms to prevent it — they didn’t do that.”
Berkeley County Council President Doug Copenhaver said pursuing a lawsuit against opioid wholesalers may have merit.
“Anyone who is in the business that takes care of the public’s needs would be doing their job,” Copenhaver said. “However, when you have as many red flags as pharmaceutical wholesalers have had flashed in front of them, and continued on at the pace that they were going, the numbers told that they were selling to people for profit.”
However, Scott Boyd, owner of Jefferson Pharmacy in Ranson and South Berkeley Pharmacy in Inwood, opposes the county joining the lawsuit.
“The Berkeley County Council should not participate and should not engage in the lawsuits against the pharmacy drug wholesalers,” Boyd said. “What is to be gained from a lawsuit that you’re asked to become engaged in — quick cash.”
Boyd said state and federal legislation has placed tighter regulation on how pharmacies fill and dispense opioid prescriptions.
“These practices have evolved over the last five to seven years and are already making a huge impact on the amounts of opioids being dispensed,” Boyd said.
According to Boyd, additional lawsuits filed against opioid wholesalers would actually hurt pharmacy operators.
“The lawsuits against the wholesalers have already served the purpose of changing the amount of opioids that are being dispensed,” Boyd said. “Additional lawsuits will only continue to rachet the supply to pharmacies to the point that, unless you are a regular customer of the pharmacy, you may not be able to get a prescription filled for pain control.”
In response, Copenhaver said any cash awards derived from an opioid wholesaler lawsuit would be put to good use.
“Our taxpayers have been faced with a huge cost to combat the over prescribing of opioids in Berkeley County,” Copenhaver said. “If we don’t enter into a lawsuit to get the money to fund what I just stated, who is going to pay for it?”
The City of Martinsburg is already considering joining litigation against opioid drug manufacturers.
The council unanimously approved a motion Feb. 12 authorizing city attorney Kin Sayre to evaluate any opioid litigation proposals made to the city.
Sayre told the council he has been approached by a law firm in the state inquiring whether Martinsburg would join other towns in West Virginia in a class action lawsuit against opioid drug manufacturers and wholesalers.
Earlier this year, the town of Kermit in Mingo County filed a lawsuit against five out-of-state prescription drug wholesalers, seeking to recoup the costs of dealing with opioid abuse.
The suit also named Cameron Justice, the former owner of a now-closed pain clinic who was sentenced in 2010 to 30 months in prison for health care fraud and allowing unauthorized staff members to issue illegal prescriptions.
Sayre said the likely scenario will be for a class action suit to be filed with individual municipalities choosing to be part of the litigation.
To join litigation, Sayre said the city would pay an entry fee, and then proceed on a contingency basis.
Sayre advised the city council that it should examine any request it receives.
“I think you’re going to see in the near future a lot of cities — maybe even the county, maybe even and the state — looking to file suit against all the manufacturers of the opioid prescription medicine,” Sayre said. “I think it’s something the city should keep an eye on.
West Virginia Attorney General Patrick Morrisey’s office has led the state’s litigious charge against opioid manufacturers. His office reached a $3.5 million settlement with H.D. Smith Wholesale Drug Company on Jan. 17.
The settlement was a joint operation between the office and the state’s Department of Health and Human Resources and Military Affairs and Public Safety.
The figure increases the total amount paid to West Virginia to $11 million from 10 drug wholesalers, according to a press release from the Attorney General’s office.
The H.D. Smith agreement represents the largest settlement to date in the broader case, West Virginia v. Amerisource Bergen et. al., the office said.
This settlement resolves allegations that H.D. Smith failed to detect, report and stop the flood of suspicious drug orders into West Virginia. It requires the wholesaler to comply with state law in reporting suspicious orders.
The plaintiffs intend to use their portions of settlement funds to further the collective fight against substance abuse in West Virginia, which faces the highest opioid overdo rate in the country.
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