CHARLESTON — All eyes are on the city of Huntington and Cabell County after a landmark trial, the first of its kind, started in Charleston on Monday in a case the government filed against drug distributors they accuse of helping to fuel the drug epidemic.
The lawsuits, filed in March 2017, allege AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp. — dubbed the “Big Three” ahead of trial — hold some responsibility for the drug crisis after more than 80 million doses of opioid medication were sent to the area in an eight-year period.
The city and county are seeking damages and reimbursement for costs associated with past and future efforts to eliminate the hazard, arguing the wholesalers failed to follow a duty under federal law to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates in the county.
The civil trial is the first of its kind in a complex group that includes more than 2,000 plaintiffs with the same argument. Summit and Cuyahoga counties in Ohio settled for $215 million in 2019 on the eve of their trial against the same companies, but the rest of the cases were placed on hold due the COVID-19 pandemic.
A similar fate was thought to be possible for the West Virginia lawsuits Sunday evening, but with neither side backing down, the trial moved forward Monday at the Robert C. Byrd U.S. Courthouse in Charleston before Senior U.S. District Judge David A. Faber, who is the ultimate decider in the case.
Huntington Mayor Steve Williams, joined by attorney Charles “Rusty” Webb, said while leaving the courthouse he was excited to have questions answered and to finally have the city’s day in court.
“I’m just glad we are in the same room as the defendants and they have to answer our questions and when they are answering we are sitting right there,” he said. “Every citizen of Huntington is sitting in that room. Every citizen of Cabell County is sitting in that room and it’s affecting every citizen of West Virginia.”
From 2006 to 2014, more than 1.1 billion prescription pain pills were supplied to West Virginia, with Cabell County receiving 81 million, about 7.4%. The amount of opioid pills saw a sharp decrease about a decade ago, making them harder to access and forcing users to turn to illegal drugs.
In his opening statements Monday, Cabell County Attorney Paul T. Farrell Jr. said the companies had been reprimanded and fined millions of dollars by the Drug Enforcement Administration several times prior to 2012.
They had made the promise of doing better, but at some point switched to a defense they had done nothing wrong and it was not their duty to report suspicious orders and control supply.
Bob Nicholas, AmerisourceBergen’s council, Cardinal Health attorney Enu Mainigi and Paul Schmidt for McKesson said while the opioid crisis has created devastating effects, they are not to blame.
The three said the reason opioid prescriptions increased is because doctors prescribed more, because research determined pain had been under-treated. Many West Virginians’ jobs require hard labor, and the state has an older population, which is why so many people from the state are in need of pain treatment. Mainigi said the DEA increased its opioid quota every year from 1998 to 2013.
Mainigi said the pills dispensed in Cabell County weren’t an accurate representation of how many were in the county because people travel in and out of it for appointments.
Mainigi said Cardinal Health’s case rests on two things: The standard of care changes caused more opioids to be dispensed, and the company did nothing to cause the change.
“It was not suspicious that Cardinal Health was getting more orders for opioids,” she said. “We are a mirror on what happened in health care. We reflect it. We don’t drive it.”
Nicholas said they followed the law to report suspicious orders to the DEA, but the regulator never followed up. The West Virginia Board of Pharmacy put their reports in a drawer and forgot about them, he said, and if the DEA suspects something is wrong at a pharmacy, they don’t hear about it.
“(The plaintiffs) are acting like reporting more would have stopped the crisis in their tracks, but that is not the case,” he said.
But Farrell pointed to a 1940s Supreme Court case in which the wholesaler went to the U.S. Supreme Court and raised a defense that their only job was to make sure the person they were selling to was registered to sell the drugs.
The court shot down the notion and ruled against the wholesaler because they should have known the buyer was going to do something wrong with the drug and they had a duty to report it, Farrell said.
Schmidt said the plaintiffs want to present it as if substance use disorder wouldn’t exist if opioids were not prescribed for smaller things, but it’s more complicated than that.
Part of that depth includes the 1,100 opioid-related deaths and 7,000 overdoses that have occurred in Cabell County in the past decade. Attorney Anne McGinness Kearse, of Motley Rice LLC on behalf of the City of Huntington, said an estimated 8,000 people of its population of about 100,000 — about 8% — are suffering substance use disorder.
West Virginia was hardly on the map for opioid-related deaths in the late 1990s, but then oxy- and hydrocodone pill sales increased due to advertisement and education campaigns, Kearse said. Farrell swung an origami rocket back and forth during opening statements, comparing the crisis to a rocket taking off.
Huntington’s problem isn’t legally dispensed pills, it’s illegal drugs, Mainigi said. Its location and years of economic failure is what makes it an easy target for drug dealers.
As early as 2011, Huntington officials said the diversion of opioid pills from pharmacies was the biggest prevailing threat to the community.
Kearse said studies have shown three out of four West Virginians who have died of an overdose had sought treatment weeks before, but it was unavailable. She said the first step to deal with having a substance use disorder is to admit you have a problem, and that’s what Huntington did.
“It was no longer us against them, it was about us,” she said. “We had to approach it differently.”
Mainigi said a study the plaintiffs referenced said 80% of people who used heroin had previously used opioid pills, but it does not mean those pills were used legally. Only 3.6% of people who use the pills legally become addicted, she said.
Schmidt said his reference says three out of four people who abuse the drug take it from someone to whom the drugs were legally prescribed.
Farrell asked why the companies attempted to control the media while simultaneously referring to opioid abusers as pillbillies and calling the opioid crisis an “Oxy Spill.” He pointed to a “Crisis Playbook,” which features specific scenario examples and mentioned local journalists by name.
Attorneys have previously spoken about the possibility of an abatement plan, also known as a “Resiliency Plan,” created by doctors, health professions and politicians in the area. It calls for a trust being created, the board of which would decide where the money should go.
The plan to fix the opioid epidemic is $2.6 billion. Nicholas said the plan for abatement is a “wish list” and generic.
BARBOURSVILLE — It’s hard to miss the flashing sign tracking motorists’ speed in the work zone on Interstate 64 in Barboursville.
However, just last week the average speed clocked by the West Virginia Department of Transportation far exceeds the 55 mph construction-zone speed limit.
“The average speed was 81 miles per hour, and the WVDOT has clocked drivers traveling as fast as 108 miles per hour in interstate work zones,” said Randy Damron, public relations spokesperson for the West Virginia Department of Transportation.
On Monday, West Virginia State Police and the WVDOT announced a weeklong speed enforcement plan to stop vehicles and issue citations for speeding in an effort to keep construction workers and motorists safe.
“Due to the speeding complaints, reckless driving complaints and number of accidents we have had here, we are stepping up patrols for the next several days trying to get motorists to slow down and keep everyone safe,” said State Police Sgt. B.K. Wellman.
Wellman said State Police troopers using radar, as well as chase cars, will be in the area eight hours a day targeting speeders.
“We started at 7 a.m. and I would say we have pulled over 35 to 40 motorists for speeding in the first two hours,” Wellman said. “Every citation we have wrote this morning has been at least 14 miles over the speed limit and we got one a few minutes ago that was traveling 83 miles an hour, which is 27 miles an hour over the posted speed limit.”
Wellman said fines for speeding are doubled in a work zone.
“The amount of the fine depends on how much over the speed limit you are going, but you are looking at a bare minimum of a couple hundred dollars,” he said.
Wellman says drivers’ top excuse for speeding in a work zone is they were not paying attention or they do not know the speed limit.
“I don’t know how you don’t know when there are signs posted miles before and throughout the work zone,” he said. “Those aren’t valid excuses.”
Damron says the goal of the targeted enforcement is simple.
“We are trying to make motorists aware they are in a work zone and let them know they need to slow down and pay attention to the signs,” he said.
Damron says the problem has plagued work zones in West Virginia for years.
“Since we started keeping track in the 1940s, we’ve had 50 DOH personnel killed in work zones,” he said.
Damron said the danger posed by speeding through a work zone is even more prevalent for motorists and those riding with them.
“A work zone requires your full attention,” he said. “There are so many distractions in vehicles these days with cell phones, the radio and stuff like that, but when you see an orange sign you need to slow down, pay attention and read the signs. They will tell you what to do.”
Wellman says the targeted enforcement could continue for weeks if motorists don’t slow down.
“We will take it on a week to week basis and see how it goes,” he said.
Wellman said they are also working with Village of Barboursville police officers.
“They are up here on a daily basis, so this is in addition to them,” he said.
Last month, Gov. Jim Justice named April as Work Zone Safety Month to draw attention to the importance of safety in highway work zones.
CHARLESTON — With state vaccination rates continuing to tumble, Gov. Jim Justice unveiled a series of initiatives intended to encourage 16- to 35-year-olds to get vaccinated.
Justice at Monday’s state COVID-19 briefing also offered some blunt words to West Virginians who are refusing to be vaccinated, stating, “Buckle up, because a bunch of you are going to die.”
The state administered an average of just over 1,500 vaccine doses a day in the past week.
Justice previously alluded to many of the initiatives he unveiled Monday but also provided some new ideas, including encouraging businesses to offer discounts or other incentives to patrons who present COVID-19 vaccination record cards showing they have been fully vaccinated.
Initiatives also include expanding efforts to take vaccination clinics to the people, with fixed and mobile vaccination sites at places where people gather, including fairs and festivals, sporting events, churches, bars and restaurants, shopping centers and other retail locations, and county, state and national parks.
Justice said there will be vaccination clinics at all state parks over the busy Memorial Day weekend, with vaccinations available to staff and their families as well as all park visitors.
He said the state is also working with Senior Services, home health agencies and Meals on Wheels to get participants vaccinated, and it is working with hospitals to vaccinate patients upon discharge.
Justice said Monday he is still trying to work the bugs out of an initiative announced last Monday to give $100 savings bonds to 16- to-35-year-olds who get vaccinated.
After claiming last Monday that the savings bonds plan was fully vetted, Justice last Wednesday conceded the details of program had not been worked out, particularly since the bonds are electronic, with no paper certificates.
“I want something someway that the kids can keep,” Justice said Monday, throwing out a new concept of perhaps awarding the $100 on debit cards, along with commemorative silver dollars.
Noting the challenge of securing 200,000 silver dollars, Justice said, “We’re trying to figure it out.”
The governor has previously said the cost of the incentive program will be paid for from unexpended federal CARES Act funds.
According to the state Auditor’s Office, as of April 26, $616.4 million of the $1.27 billion the state received in federal CARES Act funds have not been spent.
Statewide vaccination rates continue to decline in May, after plunging during the month of April, according to data on the Department of Health and Human Resources COVID-19 dashboard.
After peaking at an average of more than 17,000 doses a day in late March, demand for vaccinations fell to an average of fewer than 2,000 doses a day in mid-to-late April and are down to just over 1,500 doses a day in the past week.
Justice again pleaded with the estimated 588,000 vaccine-hesitant West Virginians to cooperate in getting their shots, stressing how state residents rallied to achieve nearly 100% participation in the 2020 census.
Even with that participation, Justice said the state finished “not only dead last, but significantly dead last” in population growth. According to the census, West Virginia’s population declined by 3.2% in the past decade, by far the largest decline of the three states that lost population, resulting in the loss of a congressional seat in the 2022 elections.
Without the high census participation, Justice commented half-jokingly, “My gosh, they might have taken all our seats and declared West Virginia to be a state park.”
Under the U.S. Constitution, each state is allotted at least one member of the House of Representatives.
Also during Monday’s briefing, DHHR Secretary Bill Crouch said the the department is no longer requiring fully vaccinated staff at nursing homes and long-term care facilities to undergo COVID-19 testing twice a week.
Unvaccinated staff, including those lacking documentation of their vaccinations, will continue to undergo twice weekly testing, he said.