ST. LOUIS - Hundreds of attorneys met before a federal litigation board in St. Louis on Thursday to argue whether about 150 nationwide lawsuits pointing the finger at several companies accused of fueling the opioid epidemic should be grouped together and heard by one judge.
A request, filed with the U.S. Judicial Panel on Multidistrict Litigation, was made in September, asking to group together those suits filed in multiple states, creating an MDL, for better cohesion and efficiency as the cases move forward. A decision is expected in two weeks.
The lawsuits state the wholesale distributors breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the states over the past several years - a duty the lawsuits claim companies have under the Controlled Substances Act of 1970.
Among those who have filed lawsuits are several governments in the Tri-State, including Scioto, Gallia and Lawrence counties and the city of Portsmouth in Ohio, and McDowell, Kanawha, Boone, Wyoming, Logan, Lincoln, Cabell and Wayne counties and the city of Huntington in West Virginia.
Huntington attorney Paul T. Farrell Jr., whose coalition of law firms represents about half of the 154 cases filed thus far, said Thursday's hearing did not seem to focus so much on whether the cases would be grouped, but instead where the cases would be heard.
"It's anyone's guess on where they will land," he said. "But the panel is looking for a judge with some experience with handling MDLs, and there was not a whole lot of time debating on judge or jurisdiction. Most of them want Columbus, Ohio, or Charleston."
Grouping would allow one judge to make rulings on pretrial motions and other issues that arise, Farrell said. Even if the case is moved out of state for the rulings, there is still an option for the case to be heard by a West Virginia federal jury.
"No one is losing their case," he said. "There are just several decisions that have to be made, and that will be conducted by one person, if the panel approves the order. It saves time and inconsistent rulings."
Farrell also noted the issue of who had filed the suits - whose plaintiffs range from hospitals, government entities, labor unions, third-party payees and individual citizens. The panel could choose to separate those suits from each other due to different claims.
The "Big Three" distributors - McKesson Corp., Cardinal Health and AmerisourceBergen Drug Corp. - and five manufacturers, like Purdue Pharma and Johnson & Johnson, who are named in dozens of the lawsuits, argued the move would be ideal. But other pharmaceutical distribution businesses - including Walgreens, Kroger, Walmart, CVS and Rite Aid - who are named in just a handful of lawsuits opposed the consolidation and taking the lawsuits out of the state of West Virginia.
Smaller pharmacy distributors named in local lawsuits oppose the centralization of dozens of cases they are not named in. The move would be unfair and dramatically increase burdens and costs associated with the move, several claimed.
The filings started after a 2016 Charleston Gazette-Mail investigation revealed that between 2007 and 2012, the "Big Three" shipped 423 million pain pills to West Virginia, which has about 1.8 million citizens, before the number of pills started to decrease.
The Cabell County Commission declared the distribution of pain medications in the county a public nuisance under West Virginia State Code and hired the law firm of Greene, Ketchum, Farrell, Bailey & Tweel to pursue first-of-its-kind legal action against those in the chain of distribution. It created a domino effect of lawsuits being filed nationwide.
Farrell then put together a national coalition of law firms that now represents more than 120 cities and counties in the Appalachian and Ohio River Valley regions that have filed lawsuits or plan to take action in the future. Eighty have been filed by the group so far, Farrell said.
"I thought initially the Tri-State would be the focal point," he said. "But I've learned the opioid epidemic is like a flower that is blossoming. It's just doing that at different times and different places. As it's at full bloom in Huntington, it's just starting to bloom in other places - from Appalachia to the East Coast."
While he knew the lawsuits would be large in number, Farrell said it was humbling to see so many filings nationwide.
"What's amazing is the lawsuits we filed on behalf of the southern counties (of West Virginia) have resulted in 200 lawyers from around the country showing up in St. Louis representing communities across the country," he said.
In total, there are 16 lawsuits in Ohio, 19 in West Virginia and 19 in Kentucky.
In a state-led lawsuit predating these, two of the "Big Three" agreed to pay $36 million to settle a West Virginia lawsuit, led by the West Virginia Attorney General's Office, in January. AmerisourceBergen will pay $16 million and Cardinal Health will pay $20 million.
Cardinal Health announced Nov. 16 the creation of its Opioid Action Program, which is aimed at helping communities in Appalachia combat the opioid epidemic.
Cardinal Health has promised to purchase approximately 80,000 doses of naloxone nasal spray for first responders and law enforcement officials in Ohio, Kentucky, Tennessee and West Virginia. It will also invest $3 million in youth prevention education and increase its existing support for drug "take back" and education programs, according to a news release from the company.
Farrell had little comment on the move.
"I'm just a hillbilly lawyer representing some southern West Virginia communities," he said. "I don't really have any comment to their donation of naloxone to help those overdosing on their own pills. That should come from local leaders.
"We got their attention today in one of the most important courtrooms in the country right now," he later said. "They know that there is going to be a reckoning and it's going to be magic or tragic - one or the other."
Follow reporter Courtney Hessler at Facebook.com/CHesslerHD and via Twitter @HesslerHD.