Judge orders suit against pain pill distributors to proceed

A lawsuit that seeks to hold a dozen drug distribution companies accountable for West Virginia’s prescription pain pill problem has cleared a major hurdle.

Boone County Circuit Judge William Thompson rejected the drug companies’ request to dismiss the case. Thompson concluded last month that two state agencies – the Department of Health and Human Resources, and the Department of Military Affairs – have the legal right to sue the drug distributors.

The lawsuit alleges the drug firms turned a blind eye to suspicious orders of prescription painkillers, knowing that the drugs wouldn’t be used for legitimate medical reasons.

“It is foreseeable the conduct alleged – failing to put in place proper anti-diversion controls so that West Virginia ‘pill mills’ would not be supplied and enabled to fuel the prescription drug epidemic – is sufficiently likely to result in the state having to spend additional resources to combat the escalation of the prescription drug epidemic,” Thompson wrote in his order that rejected the drug companies’ motion to dismiss the case.

The state’s lawsuit – filed by former Attorney General Darrell McGraw in 2012 – asserts that the prescription drug problem has devastated communities and families, and “adversely affects West Virginia’s hospitals, schools, courts, social service agencies, jails and prisons.” Prescription drug-related crimes make up 90 percent of all criminal cases in some counties, and the drug abuse problem costs the state hundreds of millions of dollars each year.

The drug distribution companies failed to report suspicious prescription drug orders and didn’t set up monitoring programs to stop the proliferation of drug sales, according to the suit.

“The…complaint alleges defendants violated state law, and the court must accept those allegations as true at this stage of litigation,” Thompson wrote.

Lawyers for the drug distributors argued that the state agencies didn’t have sufficient grounds to sue the firms.

The distributors also said they didn’t violate state consumer protection laws because the companies didn’t sell prescription drugs directly to West Virginians.

In addition, the drug firms noted that the state Board of Pharmacy, which regulates pill distributors, didn’t suspend or revoke their licenses – an action the board would have presumably taken if the firms had violated any state laws.

Thompson concluded that none of those arguments was a valid reason for dismissing the lawsuit.

However, Thompson directed the state agencies to revise the lawsuit and give specific details about how each of the dozen drug distributors broke the law.

The companies named in the lawsuit are: AmerisourceBergen; Miami-Luken; J.M. Smith Corp.; The Harvard Drug Group; Anda Inc.; Associated Pharmacies; H.D. Smith Wholesale Drug; Keysource Medical; Masters Pharmaceuticals; Quest Pharmaceuticals; Richie Pharmacal; and Top Rx.

Officials with DHHR and the Department of Military Affairs have asked Attorney General Patrick Morrisey to add McKesson Corp., the nation’s largest drug distributor, as a defendant in the case. Morrisey’s office has refused, citing its ongoing investigation into McKesson’s drug sales in West Virginia.

Before taking office, Morrisey was a lobbyist in Washington, D.C., for a trade group that represents McKesson.

Morrisey’s office has a separate lawsuit – also filed in Boone County -- against another major drug distributor, Cardinal Health. Thompson has yet to rule on Cardinal Health’s motion to dismiss that suit.

Morrisey’s wife, Denise Henry, is a longtime lobbyist for Cardinal Health in Washington. The drug distributor also contributed to Morrisey’s inauguration party, and its executives gave money to the attorney general’s campaign before and after the election. Morrisey has said he stepped aside from the Cardinal lawsuit when he took office in January 2013.

In September, a Milton businessman filed an ethics complaint against Morrisey with the state Lawyer Disciplinary board, alleging the attorney general has an “incurable conflict of interest” with the drug company lawsuits.

Representatives with Morrisey’s office, DHHR and the Department of Military Affairs declined to comment on Thompson’s ruling last week, citing “pending litigation.”

Reach Eric Eyre at ericeyre@wvgazette.com, 304-348-4869 or follow @ericeyre on Twitter.

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