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WV judge to order ‘pill mill’ documents unsealed

Charleston Gazette-Mail photo by Chris Dorst  Gazette-Mail attorney Tim Conaway argues before Boone Circuit Judge William Thompson that court records in a lawsuit filed by the state against Cardinal Health should be unsealed. The hearing was in Madison Wednesday.
Charleston Gazette-Mail photo by Chris Dorst
Gazette-Mail attorney Tim Conaway argues before Boone Circuit Judge William Thompson that court records in a lawsuit filed by the state against Cardinal Health should be unsealed. The hearing was in Madison Wednesday.

MADISON, W.Va. — A judge plans to issue an order unsealing court documents that include allegations about drug wholesaler Cardinal Health’s pain pill shipments to specific pharmacies in West Virginia.

The court records — part of West Virginia’s lawsuit against the nation’s second-largest drug distributor — have been sealed for 14 months. Cardinal Health fought to shield the lawsuit’s allegations.

On Wednesday, Boone County Circuit Judge William Thompson ruled that the public has the right to see the court records.

The judge’s order — expected to be formally entered later this week — comes a month after the Gazette-Mail went to court to unseal the state’s complaint against Cardinal Health.

“This is a state action filed on behalf of the citizens of West Virginia,” Thompson said during a hearing in Madison on Wednesday. “It should be more transparent, more open.”

Cardinal Health shipped more than 241 million prescription opioid pills to West Virginia — more than double the number of pills distributed by the next-largest supplier of painkillers to the state, according to U.S. Drug Enforcement data cited in previous court filings.

Cardinal Health sought to keep secret where it shipped those pills, saying the details would put the company at a “competitive disadvantage” among drug wholesalers.

Gazette-Mail attorney Tim Conaway told the judge that Cardinal wanted to block the release of the pill shipment information because it might embarrass the drug company.

“The public’s need to know about this very serious [prescription drug] problem is far greater than Cardinal’s need to keep selling pills,” Conaway said. “Their commercial interest to sell more pills down here is not in the public interest.”

West Virginia has the highest drug overdose death rate in the nation, and Southern West Virginia counties like Boone have been ravaged by the drug epidemic.

Henry Jernigan, Cardinal Health’s attorney, said the court records include nothing more than allegations about the company’s prescription pain-pill shipments, “not proven facts.”

“The state of West Virginia and the DEA, both of whom regulate this area, never came to Cardinal and said we believe that pharmacies in West Virginia are filling bogus prescriptions, and you should not be supplying them,” Jernigan told the judge. “They never raised any flags with Cardinal, in terms of the shipments. They knew what our shipments were, yet the did nothing.”

Jernigan added that unsealing the court documents also would unfairly tarnish pharmacies that ordered pills from Cardinal Health. The state’s lawsuit characterizes some pharmacies as “pill mills.”

“These pharmacies never had their licenses revoked by the state of West Virginia and the DEA,” Jernigan said. “That never occurred before this lawsuit was brought, and despite the allegations, it has never occurred since. The pharmacies are still in good standing.”

Conaway noted that the state’s lawsuit doesn’t name any pharmacies as defendants.

Also Wednesday, Thompson rejected Cardinal Health’s argument that unsealing the court documents would poison the potential pool of jurors that could hear the case. The judge also dismissed the company’s claim that it had an agreement with Attorney General Patrick Morrisey’s office that blocked the release of the records.

Senior Deputy Attorney General Bob Leslie said Wednesday that his office does not oppose the Gazette-Mail’s motion to unseal the court documents.

“We support, as a matter of policy, transparency that leads to accountability,” Leslie said.

Former West Virginia Attorney General Darrell McGraw filed the lawsuit against Cardinal Health in 2012, alleging that the company helped fuel the state’s prescription drug problem by shipping massive numbers of pain pills to rogue pharmacies. Morrisey inherited the case after ousting McGraw in the 2012 election.

Thompson directed the Gazette-Mail’s lawyers to submit a proposed order for him to sign. The order would unseal a revised complaint filed by the state against Cardinal Health in August 2015.

“They know this information will reflect badly on them,” Conaway said. “That’s why they want to keep it out.”

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

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