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Court orders release of previously secret reports on opioid sales

CHARLESTON — A special master in a landmark national opioid trial has ordered the release of previously secret reports that detail “suspicious” orders of powerful painkillers placed by pharmacies and purchased from giant drug suppliers.

Special Master David Cohen also directed that two additional years of federal opioid sales data be unsealed. The Drug Enforcement Administration records track prescription opioid shipments to every pharmacy in America.

What’s more, Cohen, who’s assisting with more than 2,000 opioid lawsuits filed against drug distributors and manufacturers in Cleveland federal court, unsealed transcripts of hundreds of depositions, including testimony from drug company executives and DEA agents.

The unsealing of the records follows a yearlong legal battle by the Charleston Gazette-Mail, The Herald-Dispatch and The Washington Post to make the information public. The nation’s largest drug distributors and manufacturers fought for months to keep the pharmacy order reports and data under wraps. The reports and data single out pharmacies that ordered unusually large numbers of prescription opioid pain pills.

“The court’s decision to finally open secret records and court filings to the public is long overdue,” said Suzanne Weise, a Morgantown lawyer who’s representing HD Media, which owns the Gazette-Mail and Herald-Dispatch. “Citizens are entitled to know the basic facts about the flood of prescription opioids into communities across West Virginia and the nation.”

The “suspicious order reports” are expected to number in the hundreds of thousands. The DEA database includes millions of entries about sales of the painkillers hydrocodone, oxycodone and other federally controlled drugs.

The companies wanted a judge to block the release of the reports even though the DEA, which collects them, no longer opposed making them public.

Under federal law, prescription drug distributors are required to report suspicious spikes in orders for opioids to the DEA. They’re also supposed to block the orders, something they routinely neglected to do, according to a congressional report released last year.

In court filings, the companies’ lawyers characterized the reports as “confidential business data” that contained “trade secrets.” They argued the distributors submitted the reports to the DEA under the assumption they would be kept confidential.

They also asserted the public release of the reports would violate the privacy rights of pharmacies — and their customers. And that rogue pharmacies could use past reports to “game the system” and avoid being flagged for suspicious orders in the future.

In his order this week, Cohen disagreed.

“Indeed, the evidence has been that the manufacturers, distributors and pharmacies all have fairly detailed competitive knowledge regarding whom each of them sells opioids to and buys opioids from,” Cohen wrote. “In any event, the public interest in knowing who was receiving opioids and their interactions with (the companies) outweighs the (companies’) interests in protecting the alleged trade secret.”

Cohen added that “some details” in the suspicious order reports could remain under seal, provided the companies could cite “specific information” that “provides a clear indication” to rogue pharmacies about how they could thwart scrutiny and divert drugs to the black market.

In late July, the newspapers asked U.S. District Judge Dan Polster to void part of a secrecy agreement between the distributors and the more than 2,000 cities and counties suing them as part of a landmark national case being heard in Cleveland. The local governments and drug companies signed a deal to keep the suspicious order reports confidential in May 2018.

Following a sharp rise in overdose deaths in the mid-2000s, the DEA told distributors they had to design systems to identify prescription painkiller orders of “unusual size and frequency, and deviating substantially from normal patterns.” The companies were directed to report those suspicious orders to DEA field offices.

But the distributors had a “series of breakdowns,” failing to follow the law, according to the congressional report. Some companies reported excessive orders after shipping the drugs to pharmacies. Others only notified the DEA when they ended sales contracts with suspect pharmacies.

According to the House Energy and Commerce Committee investigation:

  • Between 2006 and 2012, drug wholesale giant McKesson shipped 163 million opioid painkillers to West Virginia, but submitted no suspicious order reports to the DEA about pharmacies in the state. During the next five years, McKesson turned in more than 10,000 such reports on state drugstores.
  • Until 2012, Cardinal Health submitted just one suspicious order report in West Virginia, even though it sold 174 million doses of the painkillers hydrocodone and oxycodone in the preceding six years, the congressional investigation found. The next six years, the company reported more than 2,000 suspicious orders from West Virginia pharmacies.
  • Another distributor, AmerisourceBergen, submitted reports that ranged from a high of 792 in 2013 to a low of three orders in 2016. The wholesaler reported more than 100 suspicious orders from a pharmacy in Beckley over five months in 2013 and 2014, yet AmerisourceBergen continued to sell prescription pain pills to that pharmacy for nearly a year.

Before 2007, the company mailed copies of suspicious order reports to the DEA monthly, but didn’t block any of those same orders.

In interviews with congressional staff, an executive with regional distributor Miami-Luken acknowledged that the company made only “rudimentary efforts” to block and report suspicious orders from its customers in West Virginia. Miami-Luken flagged suspect orders based on “one’s feeling,” the executive said.

The companies also were required to report suspicious orders to the West Virginia Board of Pharmacy. In late 2016, the board released 7,000 of the reports in response to a request from the Gazette-Mail. The agency’s then-executive director said the board shelved the reports and didn’t investigate any of the pharmacies that ordered excessive numbers of pain pills.

West Virginia has the highest drug overdose death rate in the nation. Local governments allege that distributors fueled the opioid epidemic by shipping massive quantities of prescription painkillers.

Last year, the newspapers first went to court to unseal a DEA database that details prescription opioid shipments to every state, county and city in the nation. Lawyers, including those in West Virginia, had been given access to the data as part of their lawsuits against opioid manufacturers and distributors. The DEA and drug companies vigorously fought against the news organizations to shield the painkiller sales numbers from the public.

Polster initially sided with the distributors, but the newspapers appealed and won in the 6th U.S. Court of Appeals in Cincinnati.

After the appellate court decision, Polster directed the release of the DEA data from 2006 to 2012, but postponed a decision on whether to make public more current data from 2013 to 2014. The judge also didn’t release the suspicious order reports at the time.

In August, the appeals court denied a request by the drug companies that wanted a second hearing to argue why the two additional years of prescription opioid data and suspicious order reports should be kept secret.

The 2006-12 data show that drug companies saturated the nation with 76 billion hydrocodone and oxycodone pain pills while overdose deaths surged, according to a Washington Post analysis. States like West Virginia and Kentucky, which had the highest number of pills per resident per year, also had the highest overdose rates. The drug companies have contended the DEA should have stopped the flood of opioid painkillers, and they only filled orders from licensed pharmacies.

Last month, the distributors agreed to pay $260 million to settle lawsuits with two Ohio counties. The settlement, which came the day the lawsuits were scheduled to go to trial, is expected to provide a framework for future deals with the other counties and cities suing the companies.

“The court’s decision to open court and DEA records to sunlight comes very late in the day,” said Pat McGinley, who also argued the case for HD Media. “But it sends a powerful message that issues of grave national importance should never be litigated in secrecy.”

Reach Eric Eyre at ericeyre@wvgazettemail.com or at 304-348-4869, or @ericeyre on Twitter.

Veterans Day events planned around the Tri-State

HUNTINGTON — Many communities throughout the Tri-State area have made plans to honor the nation’s veterans this month with ceremonies and other events.

While Veterans Day will be observed Monday, Nov. 11, schools and other facilities got a jump on recognizing those who have served in the armed forces. At Salt Rock Elementary School on Wednesday, students presented their annual Veterans Day program and welcomed all veterans as honored guests who were also treated to lunch.

At Milton Middle School on Thursday, Nov. 7, and Friday, Nov. 8, a Wall of Honor and Remembrance will be open for the public to view. Veterans are also welcome to refreshments in the library. At 1 p.m. Friday at Culloden Elementary School, students will present a program honoring veterans featuring retired Air Force Junior Maj. Henry R. Luke. The public is invited to these events as well.

At noon Friday, the Hershel “Woody” Williams VA Medical Center, 1540 Spring Valley Drive in Huntington, will host a parade in honor of veterans, weather permitting. In addition to representatives from the VA Medical Center, the Spring Valley High School band, some “Rosie The Riveters,” motorcycle clubs and more guests are expected to participate. The parade route will go from the VA Medical Center mental health clinic to the water tower.

Each year hundreds gather at the Veterans Memorial Arch to remember, honor and memorialize the many men and women who have made the ultimate sacrifice for freedom and to thank all military personnel currently serving the country, as well as their military families.

The Greater Huntington Park & Recreation District, in cooperation with the Veterans Committee for Civic Improvement (VCCI), will present the annual Veterans Day parade and ceremony at the Veterans Memorial Arch on Monday. The parade will line up at 10 a.m. at 14th Street West, traveling east on Memorial Boulevard to the Veterans Memorial Arch. The ceremony will begin at 11 a.m. and will feature keynote speaker J. Brian Nimmo, director of Huntington’s VA Medical Center.

The ceremony also will consist of musical interludes by the Fairland High School marching band and remarks from area veterans and elected officials. Refreshments will be served by the American Legion Auxiliary, Huntington Unit 16. For more information, visit ghprd.org or contact the Greater Huntington Park & Recreation District by calling 304-696-5954.

While many West Virginia communities hold single ceremonies to observe Veterans Day each year, the town of Nitro in Kanawha County will hold two this week.

The first ceremony will get underway at sunset Sunday, Nov. 10, and the second will begin at sunrise Monday. Both ceremonies will be held at the Nitro Veterans Memorial at the corner of 21st Street and 1st Avenue (W.Va. 25) in downtown Nitro.

“The city was born out of World War I, as our state was born out of the Civil War,” Nitro Mayor Dave Casebolt said. “I truly believe we need to go all out to appreciate our veterans.”

Sunday’s ceremony will start at 5 p.m. It will include the lowering of flags at the Veterans Memorial at sunset. A bugler will play retreat. The keynote speaker will be U.S. Air Force Brig. Gen. Christopher S. Walker, who is the assistant adjutant general and commander of the West Virginia Air National Guard.

The second ceremony will begin at 7:30 a.m. Monday. It will feature the raising of the flags at sunrise to begin Veterans Day, followed by lowering the flags to half-staff. A bugler will play reveille when the flags are raised and taps when they are lowered to half-staff.

In Louisa, Kentucky, an educational military exhibit from veterans across the Tri-State area has been set up at Sullivan University (Learning Center), 122 S. Main Cross now through Nov. 16. The display will feature biographies, pictures, non-firing weapons, medals and more, starting with the American Revolution and leading through to current conflicts.

This event is free and open to the public. Local schools and other groups and classes are encouraged to attend. To schedule a group visit, call 606-826-2971.

Ryan Fischer/The Herald-Dispatch  

Ryan Fischer/The Herald-Dispatch Wang Jyun Jen, of Thailand, puts on an Asian conical hat during the 55th annual Marshall University International Festival on Saturday, Oct. 27, 2018, inside the Memorial Student Center in Huntington.

Courtesy of Owen Brooker  

Author Sarah Vowell's latest book, "Lafayette in the Somewhat United States," is a tour of the life and discussion of the impact of the Revolutionary War Hero.

Vowell will speak at the Joan C. Edwards Performing Arts Center in Huntington Saturday night.

Voters reject Developmental Disabilities levy

IRONTON — The loss of a proposed Developmental Disabilities levy Tuesday night likely will mean a cut in services to some 500 Lawrence County residents with developmental disabilities in the weeks and months ahead.

A proposal for a countywide levy to seek an additional 2.5 mill for 10 years was rejected by a total of 6,950 to 6,596, according to unofficial totals from the Lawrence County Board of Elections.

“We will meet with our finance committee and the union on Thursday,” said Tim Nunnery, a spokesman for the county Developmental Disabilities board.

The board is planning a meeting for Friday, Nov. 8, to discuss how to proceed now that the levy has been defeated, Nunnery said.

“We do anticipate tightening our belts,” he said. “We anticipate every program and service to be affected.”

The levy would have produced $3 million in new revenue each year to provide services for some 500 county residents with developmental disabilities. The board already receives $2,345,671 per year through a continuing levy.

The board operates the Open Door School in Coal Grove and the Early Childhood Development Center in Sheridan. It also provides services to adults with developmental disabilities.

The tax would have cost the owner of a $100,000 home an additional $87.50 per year in taxes.

Meanwhile, Ironton voters rejected a proposal to increase the city’s income tax from 1% to 1.75%. The levy would have brought in $1.7 million per year for city services. It was rejected 2,172 to 701.

While rejecting calls for new taxes, voters approved several local fire levies and a current expenses levy in Athalia.

Voters in Athalia approved renewal of a two-mill levy for five years and a one-mill fire renewal levy, also for five years.

Chesapeake voters, meanwhile, approved renewal of a 1.5-mill fire levy for five years. Fire levies also were approved by voters in Lawrence Township and Union Township. Lawrence Township sought renewal of a one-mill fire levy for five years, while Upper Township voters approved a two-mill fire levy for five years.