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Talks start to settle all WV opioid cases

HUNTINGTON — Talks were underway in Charleston last week in an effort to settle all West Virginia-based lawsuits filed against drug industry companies for their alleged roles in the opioid crisis.

The move comes after nationwide settlement talks perceived as slighting the Mountain State fell through last month.

The negotiations, originally ordered for state-based cases by a state judicial panel, marks the first time a state has broken out of national negotiations to work toward a universal settlement resolving all state and federal opioid cases in that state, according to Huntington-based attorney Paul T. Farrell Jr. He is leading the talks on behalf of the plaintiffs in the multiple lawsuits.

As of Friday, all West Virginia plaintiffs, including Cabell County and Huntington, have proposed a $1.25 billion settlement, which would go to plaintiffs in the cases, Farrell said. Attorneys fees would be awarded separately from the $1.25 billion and would be determined by a panel of West Virginia Judges overseeing state opioid cases. 

The deal also leaves open the opportunity for West Virginia Attorney General Patrick Morrisey to make his own settlement with some defendants in the state lawsuits.

“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 told The Herald-Dispatch on Friday.

About 3,000 lawsuits against opioid firms have been filed by different governments and other entities across the United States; Cabell County and Huntington were among the first.

In general, they argue 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. The defendant companies have generally denied the claims, saying they abided by the laws in place in carrying out their business.

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. As the number of pills sent to the state decreased over the years, those who developed drug-dependency issues turned to illicit street drugs, like heroin, to cope. During those years, the number of overdose deaths in the state skyrocketed, either from prescription drugs or illicit drugs.

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. The CDC said West Virginia had the highest overdose rate in the nation in 2017, while Ohio ranked second and Kentucky ranked fifth.

The lawsuits seek payment to help remedy the problems drug dependency has caused governments, first responders, citizens and businesses in the area.

National deal falls through

As talks started to settle the thousands of nationwide claims last year, West Virginia was among the first to reject a proposed $18 billion national universal settlement, which would be paid over an 18-year period to resolve all cases against the drug industry across the United States.

The allocation for West Virginia would have amounted to $8.9 million per year, or about $160 million total over the 18 years. Fifteen percent of that would have gone to attorneys general and counties each, with the remaining 70% going into a recovery fund. That breaks down to about $6.2 million for the recovery fund annually and $1.3 million each for the attorney general and county funds. For Cabell County, that deal would have yielded about $130,000 yearly.

However, due to past settlements by the West Virginia Attorney General’s Office, defendants had argued West Virginia should not receive funds for the recovery and attorney general funds, leaving the state receiving just $1.3 million to split among the counties.

That deal fell through in February.

Farrell said the original national deal would have West Virginia “suckling from the hind teat” for nearly two decades.

“We don’t have 18 years,” he said. “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.”

Nearly 400 lawsuits in West Virginia

In West Virginia, there are currently almost 400 lawsuits filed in federal or state courts by governments, individuals, hospitals, unions and more.

Federal cases filed nationally have all been joined as part of a multi-district litigation and are being heard by Cleveland-based U.S. District Court Judge Dan A. Polster. The cases are sent back to their local districts once Polster believes they are ready for trial, as has happened with lawsuits filed by Cabell County and Huntington.

Similarly, cases filed in West Virginia state court have been gathered to be heard before a mass litigation panel (MLP) court.

There are currently 95 lawsuits before the West Virginia panel, and more than 275 West Virginia-originated lawsuits are filed in federal court.

The West Virginia panel involves five circuit court judges. They are Alan Moats, of Barbour and Taylor counties, and Derek C. Swope of Mercer County, who decide the merits of the cases, as well as Debra Scudiere, of Monongalia County; Jay M. Hoke, of Boone and Lincoln counties; and Joanna I. Tabit, of Kanawha County, who decide the resolution issues.

Those judges recently ordered the state plaintiffs and defendants to enter mediation and invited the federal plaintiffs and the state attorney general to join on those talks.

According to Farrell, about 250 attorneys representing both sides in the cases met at the Chase Bank Building in Charleston for two days to start those talks.

Farrell; Paul J. Hanly Jr. of Simmons Hanly Conroy; and Joe Rice of Motley Rice LLC are co-lead attorneys in the federal litigation. Because of his experience in the federal cases and his involvement with West Virginia cases, Farrell was selected to lead negotiations during the discussions in Charleston. Rice was also on hand.

The first objective of the meeting was to have open and direct discussions separately for the state, and the second was to make an offer the lawyers were comfortable recommending to their clients.

“The important thing is that these are West Virginian lawyers representing the West Virginia communities and cities,” Farrell said.

He would not go into further detail about the internal mediation discussions that occurred over those two days, citing confidentiality issues. But this move has rallied all of the West Virginia plaintiffs and lawyers, including the attorney general, under the West Virginia flag, he 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,” he said. “And then we’re going to rely upon the West Virginia family to decide what’s in the best interest of West Virginia.”

The settlement proposal

The defendants were offered a universal settlement of West Virginia cases for $1.25 billion, all of which would go to the plaintiffs to directly combat fallout from the opioid crisis. The offer also seeks an additional attorneys’ fees, which would be awarded by the West Virginia MLP court.

Farrell said he reached that amount by looking at what smaller-scale settlements have been elsewhere in the country and comparing that to the financial ability of the defendant companies as more of them file for or consider bankruptcy.

Instead of being paid over an 18-year period, like the proposed national settlement had entailed, the settlement would be paid immediately, according to the proposal put forth by the plaintiffs’ attorneys. It also leaves room for Morrisey to reach his own settlement with opioid manufacturers, in which money would go toward state claims and programs.

Transparency and accountability is important, Farrell said, and that’s why the request for attorney fees was made separate from the abatement amount.

Last year, Farrell said he would seek a $500 million settlement from the defendants in the Cabell County Commission and Huntington cases alone, which included attorney fees.

The Cabell County Commission hired Farrell on a contingency basis, with him taking 30% of any damages that may be won but not charging the county if no damages are awarded. It is unclear what percentage Charles “Rusty” Webb, who represents Huntington, was to receive upon his hiring.

Farrell said the $1.2 billion for the plaintiffs is a non-negotiable number and would first have to be approved by the individual plaintiffs and attorney general before the deal is finalized, if the defendants accept.

“We are not haggling,” he said. “This is the number.”

Trial date a factor

The deal only remains on the table until Farrell begins opening arguments at a trial expected to occur later this year for claims made by the Cabell County Commission and city of Huntington.

A trial date has not been set in those cases, which will be heard together. However, Charleston-based District Judge David A. Faber is expected to set a date when the sides involved in those cases meet Thursday, March 5, in Charleston for a status hearing. Farrell said he hopes the date is set for some time in June.

Farrell said if the Cabell County and Huntington trial begins, the fallout for the defendants could be brutal.

“You can buy peace in the state of West Virginia for the devastation you caused,” he said. “Or if you don’t take this opportunity, then we’ll go to trial for Cabell County, and then we’ll set up trials for Kanawha County, Boone, Logan, Mingo, McDowell, Wyoming, Raleigh (…) with some of the best lawyers in the nation (from our state).”

The importance of setting a deadline is that the opioid pill companies are now on the clock, he said.

The details of how the money sought by the plaintiffs’ attorneys would be split have not been reached because talks are still in early stages, Farrell said.

Huntington man charged with murder in connection with deadly fire

HUNTINGTON — An arrest has been made in the investigation of a fatal structure fire that occurred Thursday at 1695 Charleston Ave. in Huntington.

The investigation into the fire led to a person of interest being located and interviewed by detectives with the Huntington Police Department. That individual, Joshua D. Hatten, 30, of Huntington, has been charged with first-degree murder and first-degree arson in connection with the fire.

Theresa Sue Wilson, 75, was located inside the residence by the Huntington Fire Department and was pronounced dead at the scene, according to city officials.

The fire was reported around 7:45 p.m. Thursday and members of both the police and fire departments were dispatched to the home.

Upon arrival, firefighters were met with heavy fire conditions and the home was fully engulfed.

Crews contained the fire to a single residence, and Wilson was found during a search of the home after the fire was brought under control.

Huntington Police Capt. Jason Young said Hatten was arrested Friday night. He was booked into the Western Regional Jail on a $100,000 cash-only bond.

Young added that the investigation is ongoing.

“We were told the person charged may be related to the woman that was killed in the fire, but we have not been able to confirm that at this time,” Young said. “We’re still developing information in this ongoing investigation.”

Thursday’s fire was the second fatal house fire in Huntington in February.

Seventy-year-old Dreama Adkins died Feb. 17 after a home in the 2900 block of 5th Avenue in the east end of Huntington caught fire. Adkins was the first fire-related death in the city this year.

Washington state sees first virus death in US

The governor of Washington declared a state of emergency Saturday after a man died there of COVID-19, the first such reported death in the United States. More than 50 people in a nursing facility are sick and being tested for the virus.

Gov. Jay Inslee directed state agencies to use “all resources necessary” to prepare for and respond to the coronavirus outbreak. The declaration also allows the use of the Washington National Guard, if necessary.

“We will continue to work toward a day where no one dies from this virus,” the governor vowed.

Health officials in California, Oregon and Washington state are worried about the novel coronavirus spreading through West Coast communities because a growing number of people are being infected despite not having visited an area where there was an outbreak, nor apparently been in contact with anyone who had.

The man who died was in his 50s, had underlying health conditions and no history of travel or contact with a known COVID-19 case, health officials in Washington state said at a news conference. A spokesperson for EvergreenHealth Medical Center, Kayse Dahl, said the person died in the facility in the Seattle suburb of Kirkland.

Dr. Frank Riedo, medical director of Infection Control at Evergreen, said local hospitals are seeing people with severe coronavirus symptoms but it’s probable that there are more cases in the community.

“This is the tip of the iceberg,” he said.

The health officials reported two cases of COVID-19 virus connected to a long-term care facility in the same suburb, Life Care Center of Kirkland. One is a Life Care worker, a woman in her 40s who is in satisfactory condition at a hospital, and the other is a woman in her 70s and a resident at Life Care who is hospitalized in serious condition. Neither had traveled abroad.

“In addition, over 50 individuals associated with Life Care are reportedly ill with respiratory symptoms or hospitalized with pneumonia or other respiratory conditions of unknown cause and are being tested for COVID-19,” Seattle and King County officials said. “Additional positive cases are expected.”

Amy Reynolds of the Washington state health department said in a brief telephone interview: “We are dealing with an emergency evolving situation.”

No one answered the phone at Life Care, but Ellie Basham, its executive director, said in a statement that residents and employees are being monitored and those with symptoms or who were potentially exposed are quarantined. The facility has banned families, volunteers and vendors as a precaution, Basham said.

A growing number of cases in California, Washington state and Oregon are confounding authorities because the infected people hadn’t recently traveled overseas or had any known close contact with a traveler or an infected person.

The U.S. has about 60 confirmed cases. Worldwide, the number of people sickened by the virus hovered Friday around 83,000, and there were more than 2,800 deaths, most of them in China. A 60-year-old U.S. citizen died in Wuhan in early February.

Most infections result in mild symptoms, including coughing and fever, though some can become more serious and lead to pneumonia. Older people, especially those with chronic illnesses such as heart or lung disease, are especially vulnerable. Health officials think it spreads mainly from droplets when an infected person coughs or sneezes, similar to how the flu spreads.

The number of coronavirus cases in the United States is considered small. But convinced that they will grow, health agencies are ramping up efforts to identify those who might be sick.

To achieve more rapid testing capacity, the U.S. Food and Drug Administration issued an accelerated policy Saturday enabling laboratories to use tests they develop. FDA Commissioner Stephen Hahn said his agency is “rapidly responding and adapting to this dynamic and evolving situation.”

The California Department of Public Health said Friday that the state will receive enough kits from the U.S. Centers for Disease Control and Prevention to test up to 1,200 people a day for the COVID-19 virus — a day after Gov. Gavin Newsom complained to federal health officials that the state had already exhausted its initial 200 test kits.

Oregon was able to more quickly identify a case — an employee of an elementary school in Lake Oswego near Portland — because it was able to test a sample locally. School district officials said Saturday the employee had been visited in the hospital by several people before he was diagnosed. Those individuals have been asked to observe a two-week quarantine and are being closely monitored.

The district is deep-cleaning all its schools and all school buses with the goal of having students back in class Monday, said Superintendent Lora de la Cruz. But Forest Hills Elementary, where the man worked, is closed until Wednesday, marking two weeks since he was last at the school.

Earlier U.S. cases include three people who were evacuated from the central China city of Wuhan, epicenter of the outbreak; 14 people who returned from China, or their spouses; and 42 American passengers on the Diamond Princess cruise ship, who were flown to U.S. military bases in California and Texas for quarantining.

The U.S. government looked at sending dozens of Californians, several of whom tested positive for the virus, who had been aboard the cruise ship to a state-owned facility in Costa Mesa, California.

Local officials objected, saying they weren’t included in the planning and wanting to know what safeguards would be in place to prevent spread of the virus. The U.S. government said it didn’t need to use the facility after all.

At UC Davis Medical Center in California, at least 124 registered nurses and other health care workers were sent home for “self-quarantine” after a Solano County woman with the virus was admitted, National Nurses United, a nationwide union representing registered nurses, said Friday.

The case “highlights the vulnerability of the nation’s hospitals to this virus,” the union said.

Washington state health officials announced two other new coronavirus cases Friday night, including a high school student who attends Jackson High School in Everett, said Dr. Chris Spitters of the Snohomish County Health District.

The other case in Washington was a woman in King County in her 50s who had recently traveled to South Korea, authorities said. Neither patient was seriously ill.

Will Price/West Virginia Legislative Photography  

Sen. Craig Blair, R-Berkeley, answers a question about the Senate’s budget bill during a floor session on Feb. 29 at the Capitol in Charleston. The Senate passed its version of the state budget on a 28-1 vote.

State, local officials preparing for coronavirus in W.Va.

HUNTINGTON — They don’t know when and they don’t know where, but two things are clear for health officials in Cabell County and across the nation — coronavirus (COVID-19) will spread throughout the U.S., and people should not panic. 

“While the immediate risk of COVID-19 to West Virginians is believed to be low at this time, everyone can do their part to help us respond to this emerging public health threat,” said Dr. Cathy Slemp, state health officer, in a news release. “It’s currently flu and respiratory disease season, so DHHR recommends everyone 6 months of age and older get a flu vaccine. Take everyday, preventative actions to stop the spread of germs, such as washing your hands frequently, covering coughs and sneezes, cleaning surfaces and staying home from work or school if you are sick.”

The viral outbreak that began in China has infected more than 83,000 people globally. The World Health Organization has named the illness COVID-19, referring to its origin late last year and the coronavirus that causes it. As of Thursday, 60 people were confirmed to have the virus in the United States, all but 17 of them evacuees from the Diamond Princess cruise ship. One woman in Northern California with no recent travel history or known contact with an infected person tested positive for the new virus last week, which prompted health officials to change testing guidelines to include people who are severely ill and have no other explanation for it. On Saturday, it was reported that a man in Washington state had died of COVID-19, the first such reported death in the United States.

Health officials have not reported any identified cases of COVID-19 in West Virginia, Ohio or Kentucky.

State health departments in West Virginia, Ohio and Kentucky have all stated they are working to proactively reduce the possibility of community spread of the virus and following guidelines by the Centers for Disease Control and Prevention. The immediate health risks in all three states is still considered low. However, according to CDC, due to the rapidly changing nature of the spread of COVID-19 around the world, it is important for families and businesses to prepare now for potential community spread.

“We are working to ensure our health systems, emergency management agencies, first responders and county health departments are prepared and have the resources they need to respond to localized outbreaks in West Virginia communities,” Slemp said.

Dr. Michael Kilkenny, medical director of the Cabell-Huntington Health Department, said the department is working with federal, state and local partners to review pandemic procedures.

“Certainly, we have a history of training for pandemic situations,” Kilkenny said. “We are not starting from ground zero. We are simply refreshing plans, making sure we understand plans, checking all aspects of the plan to ensure we address safety of all citizens as best we can.”

Kilkenny said some early evidence indicates the elderly are more severely affected by the virus, along with those who are already immunocompromised, but there still isn’t enough research to give strong advice regarding which age groups may be most affected.

He said he wished he could envision what it may look like if the novel virus arrives in the area.

“We are doing the best we can to update the pandemic plans using the information we obtain about this specific disease and realizing that we have limitations in that there is no immunity to this disease, there is no vaccine and there is no specific antiviral treatment available at this time,” Kilkenny said. “Testing is also limited.”

Testing for the virus will be coordinated by the local health provider, local health department and state health department. Travel plans are in place to get tests to the CDC.

Cabell County Schools is working with the health department to monitor the virus. Thanks to the active flu season, the school district has already begun taking preventative measures recommended for coronavirus, including cleaning all rooms with disinfectant daily; disinfecting school buses after morning and evening runs; continuing to encourage frequent handwashing; monitoring soap in restrooms to make sure supplies are adequate; and closely monitoring daily attendance rates.

The district is also continuing to relax its attendance policy, allowing sick students with flu-like symptoms to stay home without the need to obtain a doctor’s excuse. Should coronavirus become a factor in the region, the district would continue that policy.

At the moment, the CDC is recommending people take everyday precautions to prevent spread of any disease, including proper handwashing and avoiding touching your face. Masks are not recommended unless you are experiencing symptoms of coughing and difficulty breathing. General surgical masks do not protect people who are not sick. More advanced masks, called N95, require proper training and fit testing, Kilkenny said, and those are only recommended for professionals.

Because masks are not recommended, the CDC is also not recommending men shave their beards, despite a CDC infographic circulating online stating the opposite. The Associated Press reported that the infographic was created in 2017 for professionals who use N95 masks.

“What we need to do is be aware the disease could occur, know as much about it as we can and practice good general hygiene — handwashing, clean surfaces, disinfecting — things we are already doing because there is flu in the community,” Kilkenny said.

Kilkenny suggested the public remain calm and flexible, looking to sources like the CDC for updated guidance as the virus progresses.

“This is a situation where the public needs to act responsibly and look out for itself,” he said.

CDC monitoring of the virus can be tracked at cdc.gov/coronavirus.