HUNTINGTON — As Cabell County and Huntington wait for a ruling in their months-long trial against opioid distributors in Charleston federal court, a state judge has ruled the show must go on.
In an order issued Wednesday by Alan Moats and Derek Swope, presiding judges over state opioid litigation, it was ordered that three out of dozens of opioid lawsuits would be the first to go to trial in state court.
The cases were filed by West Virginia Attorney General Patrick Morrisey against opioid manufacturers Teva Pharmaceutical Industries Ltd., Janssen Pharmaceuticals Inc. — also known as Johnson & Johnson — and Endo Health Solutions Inc.
The civil bench trial against the three is set to start April 4, 2022, before the Mass Litigation Panel in Kanawha County and could set the tone for the rest of the state cases.
They each charge the defendants civilly with two counts — one for common law public nuisance seeking the remedy of abatement, and one for violations of the West Virginia Consumer Credit and Protection Act seeking statutory civil penalties and other equitable remedies.
The state alleges the companies mischaracterized and failed to disclose the serious risk of addiction, overstated the benefits of chronic opioid therapy and promoted higher dosage amounts without disclosing inherently greater risks and concealed their misconduct.
In moving forward, the judges cited trial court rules, which authorize a panel of judges to develop and implement case management methods to expeditiously resolve mass litigation. The judges said severing the three cases and expediting the state’s request for a bench trial is consistent with the ruling to resolve the matters as expeditiously as possible.
Morrisey said it was a huge step toward gaining justice for those affected by the crisis.
“The defendants’ alleged actions have caused widespread harm to our state and its citizens. They must be held accountable,” he said.
The cases are among dozens filed by local governments, hospitals and individuals affected by the opioid crisis in both federal and state court. The plaintiffs argue the companies’ manufacturing, promotion or distribution of prescription opioids in the state were not proper.
The vast majority of cases have languished unresolved for years, save for those filed by Cabell County and Huntington, municipalities that after three months of trial testimony led by attorney Paul Farrell Jr. are waiting for a federal judge to rule if defendants AmerisourceBergen Drug Corp., Cardinal Health and McKesson are responsible for helping to fuel the drug crisis.
With the closing arguments behind attorneys in that case, and a nudge from July rulings from the state’s high court, the state cases are now moving forward.
Charleston attorney Rusty Webb said he believes it places the state as the next to face off against these defendants.
“We are going to have a lot of activity in West Virginia, which should give us some leverage on maybe trying to get the whole state settled,” he said.
The case against Johnson & Johnson alleges its subsidiary and co-defendant, Janssen Pharmaceuticals Inc., ignored guidelines for the standard of care to persuade concerned doctors that opioids they had been unwilling to prescribe were more effective and safe enough for wide and long-term use, even for treatment of relatively minor pain conditions.
The Teva action states sales representatives for that manufacturer marketed the fentanyl-based opioid Actiq to non-oncologists and pain clinic doctors, even though the representatives knew the drug in question was for cancer patients.
Finally, Morrisey alleges Endo rebranded its widely abused drug Numorphan from the 1960s to keep up with competition decades later. The effort included a new name, Opana, and a new color to minimize memory of a reputation tarnished by widespread abuse and diversion.