This Tuesday, Aug. 15, 2017, photo shows an arrangement of pills of the opioid oxycodone-acetaminophen in New York.

CINCINNATI — The U.S. 6th Circuit Court of Appeals has ruled an Ohio federal judge abused his power in issuing a blanket protective order prohibiting the public release of extensive Drug Enforcement Administration opioid data that would show the number of painkillers drug companies shipped to pharmacies nationwide.

The opinion - penned by Circuit Judge Eric L. Clay and released Thursday - said Cleveland-based U.S. District Judge Dan A. Polster did a U-turn in his own reasoning for allowing the data to be given to plaintiff counties that filed lawsuits against the drug companies, but not the media.

"Between the time it ordered the DEA to produce the ... data to plaintiffs and the time it denied (the media's) request for the data, the district court seems to have done a complete about-face concerning the relevant interests at stake," Clay wrote.

The ruling came after May 2 arguments from lawyers from HD Media, which owns the Charleston Gazette-Mail and The Herald-Dispatch in Huntington, and The Washington Post asking for the data to be disclosed after Polster previously denied the request.

Polster had declined to keep the data from plaintiff counties, saying it wouldn't harm law enforcement investigations, nor would it cause competitive harm to businesses, but ruled otherwise when the media requested the data.

Beyond reversing the protective order, the appellate judges said the defendant drug companies, the DEA and the U.S. Justice Department had attempted to undermine the importance of the collected opioid data in educating the public about the opioid crisis.

"The defendants have offered no new reasons on appeal to question the district court's analysis of their interest in nondisclosure and we conclude that Defendant's interests are far outweighed by the specific concrete interest (newspapers) and the public have in disclosure of the ... data," they wrote.

Pat McGinley, a Morgantown lawyer representing HD Media, called the opinion a big victory.

"The opinion is a vindication of aggressive and professional reporting by newspapers whose goal it was to inform the public about the literally billions of pills that flooded the country over a decade and a half," he said. "It's a great victory for the public's right to know and the independent press."

As far as what and when data will be released, McGinley said Polster now has rigorous conditions he must follow if he decides to withhold any of the data from the public. There is also a possibility the losing parties could appeal for reconsideration before the entire appeals court, not just a panel of three judges, he said.

The two newspaper companies are asking to retrieve gigabytes of raw data from the DEA ARCOS database that would reveal the number of opioids that drug companies shipped to pharmacies in counties in West Virginia and Ohio from 2006 to 2014. The data was turned over in three federal lawsuits filed against drug distributors and pharmacies in three counties, including Cabell County in West Virginia and Summit and Cuyahoga counties in Ohio. The drug companies named in the lawsuit are accused of oversupplying communities with opioid painkillers, which is believed to have started the opioid epidemic. More than 1,800 lawsuits against opioid manufacturers and distributors have been filed across the country.

Polster had ordered the data be released to the counties only for the use of the lawsuit and law enforcement needs and be kept secret from the public. If the plaintiffs received a request for the information, the court said it would revisit the issue. When HD Media and The Washington Post came forth, their request was denied by Polster.

The newspapers had argued keeping the information from the public would hinder the public good and undermines the presumption of transparency and openness of court proceedings and government records.

The DEA and Justice Department argued that release of the information would affect law enforcement efforts and cause competitive injury among the companies. Polster had ruled the defendants and federal government had shown "good cause" in needing the protection order.

However, since the protective order was a negotiated agreement between the plaintiffs and defendants at the time, and no one had argued against it, it could not have found good cause for the blanket protective order at the time, the court ruled Thursday.

The appellate court said the DEA had said public disclosure would harm its ability to investigate and prosecute misconduct involving controlled substances, but the appeals court said "how this interest would be impeded by the public release of the data is not made clear," adding the data becomes less valuable as it ages, especially because there is a five-year statute of limitations on controlled substance offenses.

The judges found the agency was unable to show any harm caused by previous reports by the Gazette-Mail using data released by the West Virginia attorney general.

That data was reported in Gazette-Mail reporter Eric Eyre's Pulitzer Prize-winning piece, which revealed between 2007 and 2012, distributors pumped 40 million doses of hydrocodone (sold under brand names such as Lortab) and oxycodone (OxyContin) to pharmacies in Cabell County. More than 780 million oxycodone and hydrocodone pills were dumped into the state from 2007 to 2012.

In ruling the protective order would stand earlier this year, Polster said nothing would be revealed to the media unless there was a trial, which was an abuse of power in pushing the defendants for settlement, the opinion stated.

The appellate court said the comments sounded as if they were motivation for the nondisclosure and were improper.

"If this was motivation for its holding, then the district court abused its discretion by considering an improper factor," the judges wrote.

Clay was joined by Judge Richard Allen Griffin. Judge Ralph B. Guy Jr. agreed with the ruling against sealing the filing, but said he saw no harm in leaving Polster's protective order in place to encourage a settlement.

Follow reporter Courtney Hessler at Facebook.com/CHesslerHD and via Twitter @HesslerHD.


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