County to sue drug makers

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Commission hopes to recoup costs of fighting opioid epidemic

BUCKHANNON — The Upshur County Commission on Thursday voted to sue opioid manufacturers and distributors, which have been widely blamed for the spread of the opioid epidemic in West Virginia.

At its weekly meeting, the commission unanimously voted to hire the Wheeling-based Fitzsimmons Law Firm to pursue legal action against pharmaceutical companies that have been accused of shipping large amounts of prescription opioids into the state, resulting in skyrocketing overdose deaths, a soaring need for more treatment facilities and ballooning costs to counties, which foot the bill for incarcerating people when they’re convicted of drug-related offenses.

The county first learned about several firms pursuing lawsuits against opioid manufacturers to recoup the cost to counties of coping with the opioid crisis during a joint meeting with the Lewis County Commission in April 2017.

In 2016, West Virginia had the highest rate of death from drug overdoses — primarily driven by opioid overdoses — in the United States, with 52 drug overdose deaths per 100,000 people, according to statistics from the Centers for Disease Control and Prevention.

After advertising for proposals, the commission reviewed two at its Jan. 11 meeting — one from Fitzsimmons Law Firm and a second from the Williamson, W.Va.-based company, the Chafin Law Firm in conjunction with Morgan & Morgan, the Bell Law Firm and the Troy Law Firm.

However, at the recommendation of county administrator Carrie Wallace, the commission tabled making a decision about whether or not to hire either firm until commissioners had time to review a consolidated lawsuit filed against drug manufacturers on behalf of Hancock, Brooke, Ohio, Marshall, Tyler, Wetzel, Harrison, Lewis and Randolph counties by Fitzsimmons Law Firm.

At the outset of the discussion, commissioner Terry Cutright said he thought the county ought to hire Fitzsimmons Law Firm because the company charges 25 percent of the amount awarded to the county, if the county is victorious, while the Chafin Law Firm and its cohorts charge 25 percent of the award in addition to expenses.

Commissioner Troy “Buddy” Brady agreed, although said he was slightly hesitant to file suit.

“I think if we decide to do it, I like the 25 percent,” Brady said. “That way you don’t have something hanging out there that’s going to cost you another $30,000 or $40,000 [in expenses]. But I always have a problem with suing the drug companies when you really look at it … I also look at it as you can’t get the drugs unless a doctor prescribes it. I see it two different ways.”

Commission president Sam Nolte said the epidemic has become so severe that health departments in surrounding counties have instituted needle exchange programs through which opioid users can exchange used needles for “clean” ones in order to prevent the spread of diseases like Hepatitis B and Hepatitis C.

“That’s something that I don’t know if we would have even talked about 10 years ago,” Nolte said. “[The Lewis County Health Department] is up to 30 people per month … and that’s just getting people to feel comfortable enough to come do it, even though it seems odd that you’re doing it at the health department, it’s necessary because it could lead into other diseases, Hep C. I mean that’s where we’re at — this is all directly related to the opioid use.”

Brady said he didn’t doubt the problem was substantial.

“But the medication prescribed, the oxycodone, the hydrocodone, the Percocets, so on and so forth, the only way you can get them is if it’s prescribed by a physician,” Brady said. “With that being said, I can understand where Commissioner Cutright’s coming from because when you see the number of prescriptions that have been issued to small towns … somebody should be checking that.”

Cutright said he was alarmed by several statistics he’s come across.

“One statistic in that lawsuit (filed by Fitzsimmons) was [there are] 433 pills for every adult in West Virginia, I think from 2007 to 2012,” Cutright said.

Brady observed that 75 percent of residents housed in the regional jail had landed there due to drug or alcohol-related offenses.

“They do things when they’re on drugs or alcohol that they normally would not do if they weren’t, so it is a problem,” Brady said. “Gentlemen, whatever your pleasure is, but if we’re going to hire one of the two of them, [Fitzsimmons] would be my choice because of the 25 percent.”

Cutright made a motion to hire Fitzsimmons Law Firm, and Brady seconded the motion after a long hesitation. The motion passed unanimously.

According to the proposal Fitzsimmons Law Firm submitted, the county won’t be charged for the firm’s services unless the county is awarded a settlement. Similar lawsuits filed on behalf of other West Virginia counties sought “damages related to the diagnosis, treatment and cure of abuse and/or addiction or risk of addiction to opioids; the expenditure of resources for care, treatment facilities and law enforcement associated with opioid addiction, abuse and diversion; and damages to abate the public health and safety nuisance caused by the opioid epidemic.”

Also in their proposal, the firm claims its has won more than $1 billion in settlements and verdicts for clients and notes it represented West Virginia University in its lawsuit against former football coach Rich Rodriguez.

Before adjourning, the commission also:

* Approved a proclamation presented by Women’s Aid in Crisis sexual assault advocate Bobbi Cox and domestic violence awareness advocate Addie Helmick declaring the month of January Stalking Awareness Month.

* Received correspondence from Upshur County Prosecuting Attorney David Godwin and victim advocate Matthew Cutright announcing Cutright’s resignation, effective today, Friday, Jan. 19.  Godwin had previously questioned the county clerk’s office delay in reimbursing Cutright for money spent on meals while he was attending a job training workshop in Charleston in November. County clerk Carol Smith said her office hadn’t reimbursed Cutright the $105 he was owed because he hadn’t provided receipts, as is required by county policy; however, Godwin argued that since Cutright’s training was funded by a federal grant, the Victim of Crime Act Victim Assistance grant program, he was to be reimbursed on a per diem basis, in accordance with grant requirements.

Cutright on Thursday said his resignation was unrelated to the reimbursement issue, adding that he’s returning to a previous position he held with the W.Va. Department of Health and Human Services.

“I think we were just pressing the reimbursement issue a little harder because it was coming up on crunch time before I was going to leave,” he said.

Cutright said he anticipated receiving a reimbursement check Thursday.

* Approved a request for qualifications for environmental consultant services necessary for the completion of the Upshur County Youth Camp Tar Pit EPA Brownfields Cleanup Project. Sealed proposals must be received by the commission by 4:30 p.m. Wednesday, Feb. 28. Proposals will be opened and publicly reviewed by the commission at its March 1 meeting.

* Approved a request from Godwin to advertise for the victim advocate position.

* Approved a request from Lori Ulderich-Harvey asking that space in the county courthouse annex be utilized for a display table for “Through with Chew Week” and “Kick Butts Day” from Feb. 12 through March 23.

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