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

By ERIC EYRE

Charleston Gazette-Mail

CHARLESTON, W.Va. — 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.

Reach Eric Eyre at [email protected], 304-348-4869 or follow @ericeyre on Twitter.

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