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Appeals court rules judge was wrong to keep opioid pill numbers secret

A federal appeals court has ruled that a judge went too far in blocking the public release of federal data that would show the number of opioid painkillers drug companies have delivered to pharmacies across America.

A 6th U.S. Circuit Court of Appeals three-judge panel on Thursday vacated an order by Cleveland-based U.S. District Judge Dan Polster to keep the information secret. The panel wrote that Polster failed to follow proper legal procedures in determining what information about prescription opioid shipments could be withheld and the reasons why.

Polster is overseeing more than 1,500 lawsuits filed by municipalities against companies that make and distribute prescription painkillers.

The judges called Polster’s ruling to block the release of the data “bizarre,” finding that his statements suggested that he was using the threat of disclosing the information as a “bargaining chip” during settlement talks.

“If that was a motivation ... then the district court [Polster] abused its discretion,” the appeals judges wrote in their 18-page opinion.

In May, the judges heard arguments in Cincinnati from attorneys with HD Media, which owns the Charleston Gazette-Mail and Herald-Dispatch. The newspaper lawyers said the pill numbers would help communities across the United States better understand the origins of the opioid crisis.

A U.S. government attorney countered that revealing the pill numbers would compromise ongoing Drug Enforcement Administration investigations, even though the data is at least five years old. The drug distribution companies argue that the DEA pill shipment data must remain under wraps because it’s “confidential business information.”

The oversupply of opioid pain medications — triggered by doctors writing too many prescriptions — is widely believed to have started the opioid epidemic and led to a record number of fatal overdoses.

Lawyers representing states, cities and towns suing the companies already have the pill data, which stretches from 2006 to 2014. They’ve had it for more than a year. They’ve selectively disclosed some of the totals in lawsuits, but redacted more specific numbers or filed the complaints under seal.

HD Media requested DEA data from the Cabell County Commission, which sued the distributors in 2017. Commissioners said they wanted to release the information, but Polster stopped them. The Washington Post asked for the same pill data in Ohio, and was blocked.

On Thursday, the appeals panel directed Polster to draw up a new ruling, setting out how the opioid shipment data could be disclosed. The appeals court said Polster could consider the DEA’s arguments for withholding “pieces” of the opioid information.

“However, the district court shall not enter a blanket, wholesale ban on disclosure,” the judges said.

The data sought by the newspapers lists the types of opioid pills shipped, the number of pills, the names of the distributors that shipped them, and the pharmacies that ordered them.

The DEA and distributors say the shipment numbers likely will be made public when the lawsuits go to trial. But it’s more likely the companies will agree to settle, and the pill data will remain forever hidden, according to the newspapers’ attorneys.

HD Media is being represented by Morgantown lawyers Pat McGinley and Suzanne Weise.

In 2016, the Gazette-Mail obtained the DEA data after persuading a judge to unseal court records and filing a public records request with West Virginia Attorney General Patrick Morrisey’s office. The data showed that distributors showered small towns across Southern West Virginia with powerful painkillers, while the region was hit by an unprecedented number of overdoses.

The newspaper’s reports sparked a congressional investigation. A House committee blasted drug distributors for “pill dumping.” The panel also sharply criticized the DEA for turning a blind eye to the massive opioid shipments.

Also Thursday, the appeals judges ruled that Polster erred by allowing the DEA and the companies to file dozens of other pleadings under seal — without stating a reason for secrecy. The filings will be unsealed unless Polster can “adequately explain” why the court documents must stay shielded from the public.

Reach Eric Eyre at

ericeyre@wvgazettemail.com, 304-348-4869 or follow @ericeyre on Twitter.

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Bias, Kenneth - 7 p.m., Evans Funeral Home & Cremation Services, Chapmanville.

Carrow, Mildred - 1 p.m., Marmet Memorial Gardens, Marmet.

Coleman, Aaron - 1 p.m., Cooke Funeral Home Chapel, Cedar Grove.

Fore, George - 7 p.m., Keller Funeral Home, Dunbar.

Midkiff, Cleo - 2 p.m., Bartlett-Nichols Funeral Home, St. Albans.

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Shamblin, Cathy - 7 p.m., Christ Community Church, Scott Depot.