HUNTINGTON — Although a $26 billion national opioid litigation settlement is looming, local governments in West Virginia are expected to keep control of dozens of cases filed in the state.
According to The Associated Press, whose sources spoke on condition of anonymity, four companies — AmerisourceBergen, Cardinal Health, McKesson and Johnson & Johnson — will take part in a $26 billion settlement, the largest opioid-related settlement to date in a complex and vast world of opioid litigation.
The plan calls for funds to be split among states, with 85% based on population size and 15% on severity of the crisis, The Washington Post reported.
Huntington attorney Paul T. Farrell Jr., who has helped lead local governments in their opioid litigation for years, said the entities that have filed dozens of cases in state and federal courts would have been “tossed pennies” had they been included.
The companies are among several opioid firms facing thousands of claims from state and local governments, which accuse them of starting and fueling the opioid crisis through false marketing and not following proper channels to flag or halt excessive shipments.
Accusations against AmerisourceBergen, Cardinal Health and McKesson have been detailed over an eight-week-long trial in federal court regarding a lawsuit filed by Huntington and Cabell County.
The settlement will have no effect on the outcome of that case, which awaits closing arguments next week, or any other in the state, Farrell said.
“We have been carved out of the national settlement and left on our own to find a remedy,” he said. “The federal judge in Charleston has recognized the standing of the city of Huntington and the (Cabell) county commission by allowing it to proceed forward, despite the earlier settlement by the West Virginia attorney general.”
Farrell said there has been a two-year history for the settlement discussions, which led attorneys general nationwide to meet and create an allocation plan, known as the Denver Plan, to determine how to divide monies from opioid litigation. That led to an initial allocation of .6% for West Virginia, but the state was further cut out because of opioid settlements reached between the firms and West Virginia Attorney General Patrick Morrisey on behalf of the state.
“What I did was I told the other attorneys general that the county and city had individual standing and the attorney general did not have authority to release our claims and we were going to proceed forward with our claims with the city and county,” Farrell said. “They told me good luck.”
Farrell said even if the attorneys general did not carve West Virginian governments from the plan, he still would have objected because it allocates money based on population rather than harm.
“I think this is a blessing and an opportunity for West Virginia to have a full reckoning and accountability,” he said.
Morrisey said he believes his actions have positioned the state and local governments to fare “very well.”
“We have expressly carved the counties and municipalities out and positioned them and our Office to reach an agreement that is based upon the severity of the harm imposed on West Virginians. I will keep fighting to protect West Virginia and will not allow larger states to dictate how we hold defendants accountable for their actions,” Morrisey said in an emailed statement Tuesday. “As of today, West Virginia is very likely a no on these agreements, but we will continue to review all proposals and advocate for the best interests of West Virginians.”
The approval of a national settlement will be an uphill battle for those that do want a cut.
The Post said to receive the maximum payout, 48 states, 98% of litigating subdivisions and 97% of jurisdictions that do not have ongoing cases must sign onto the deal. States will have a month, followed by four months for state and local governments, to decide if they will join the settlement.
As part of the national settlement, the companies will be required to establish a national clearinghouse of data on opioid distribution, which would be monitored by an independent body. Johnson & Johnson also would agree not to produce opioids for the next decade.
Those agreeing to join the settlement cannot file civil cases against the companies, but company executives could still face criminal charges.
West Virginia’s reluctance to join a national settlement is not new news.
Local governments rejected a similar $18 billion proposed global settlement in 2019. In March 2020, dozens of attorneys met in Charleston to discuss a possible settlement for all West Virginia-based cases. In those discussions, West Virginia plaintiffs, including Cabell County and Huntington, proposed a $1.25 billion settlement, in addition to separate attorney fees.
But with closing arguments in Cabell County and Huntington’s trial looming, the two are now asking a judge to force the “Big Three” to fund $2.1 billion for an abatement plan in Cabell County alone.
Asked if a universal settlement of West Virginia cases was still on the table, Farrell said no.
“I don’t think it is possible,” he said. “I think the focus has been on the national settlement and West Virginia has been left behind until the day we have our own reckoning in federal court.”
Farrell said as the West Virginia cases move forward, it has been proposed the city of Charleston and Kanawha County be the next to move to trial.