The Washington Post - 21.10.2019

A8 EZ RE THE WASHINGTON POST.MONDAY, OCTOBER 21 , 2019

More suits are filed

In 2012, as the opioid crisis

raged, West Virginia decided to

bring two new lawsuits. This

time, the targets were the giant

opioid distributors Cardinal

Health and AmerisourceBergen,

along with a dozen smaller com-

panies.

By then, about 4,200 children

were in foster care, up from 3,

four years earlier.

“We couldn’t find foster par-

ents who could pass drug tests,”

said Gupta, who was leading the

health department in Charleston

at the time. “We were often hav-

ing to create emergency shelters

... in hotels and even in our
offices. We’re running out of peo-
ple to take care of kids.”
Angela Davis, then a casework-
er for the state, bounced toddlers
on her lap while she worked the
phone to find a spare bed. She
needed foster parents with no
felonies and no history of drug
use. Time and again, she would
strike out.
“It was like, ‘No, you’re out. No,
you’re out. No, you’re out,’ ” Davis
recalled.
She would eventually go to
work at Lily’s Place, a nonprofit
that cares for drug-exposed ba-
bies in Huntington, an hour west
of Charleston. About 1 in 3 infants
at the center are wards of the
state, nursed to health in pink
and yellow rooms with signs that
say “Dream Big Little One.”
In Charleston, officials were
focused on the lawsuits against
the drug distributors.
McGraw, still the attorney gen-
eral, had brought on Charleston
lawyer Jim Cagle, as well as a firm
founded by well-known attorney
Rudy DiTrapano and his law part-
ner, Joshua Barrett. The firm had
helped pursue the state’s case
against Purdue.
Cagle would direct the case
against Cardinal Health because
Barrett’s brother George had be-
come Cardinal’s chief executive
three years earlier.
The cases would be heard by
Boone County Circuit Court
Judge William Thompson, who
for years had overseen child
abuse and neglect hearings with
absentee parents.
“They’ve disappeared into the
winds,” he said more than once,
studying the empty chairs in his
wood-paneled courtroom.
In 2013, a year after the new
lawsuits were filed, lobbyist and
lawyer Patrick Morrisey became
attorney general after defeating
McGraw in a statewide race. The

“There is no way we can send

all these babies home to foster

care,” Maxwell recalled telling his

team. “We have to bring families

back in the fold.”

As front-line workers scram-

bled, journalists, lawmakers and

state officials began to question

the state’s settlement with Pur-

due.

Of the $10 million, 33 percent,

or $3.3 million, went to fees for

lawyers at four outside firms

brought on by McGraw to pursue

the case. The balance went into a

fund controlled by his office.

McGraw said he directed mon-

ey to initiatives across the state,

including a drug diversion and

awareness program in McDowell

County and a pharmacy school at

the University of Charleston.

In a 2007 report, however, a

West Virginia watchdog group

accused McGraw of doling out

settlement money to rally politi-

cal support. “McGraw has created

his own personal ‘slush fund’ to

spend at his will,” West Virginia

Citizens Against Lawsuit Abuse

wrote.

State legislators proposed

measures to force McGraw to put

legal services out to bid and to

turn over settlement money to

the legislature. The proposals did

not pass.

“It shouldn’t be the attorney

general’s office making that deci-

sion to open a pharmacy school,”

then-State Sen. Vic Sprouse told

the West Virginia Record, a legal

journal owned by the U.S. Cham-

ber Institute for Legal Reform.

Legislative auditors would also

weigh in, finding that McGraw’s

office had deposited the Purdue

settlement and money from unre-

lated settlements into one ac-

count with “significant internal

control weakness and noncom-

pliance in areas of high risk.”

Payments of nearly $800,

lacked proper documentation

and detail, the audit found.

McGraw said he was not famil-

iar with the findings. “I can’t

letter-and-verse go through every

check to whomever got it,” he

said. “We financed multiple drug

detection and prevention pro-

grams... that’s what I remem-

ber.”

Martha Yeager Walker, secre-

tary of the state’s Department of

Health and Human Resources

from 2005 to 2009, said the state

should have prioritized West Vir-

ginia’s children.

“DHHR should be getting most

of the settlement money,” she

recently told The Post.

factory.”

“We felt great pressure to settle

it,” he said. “All the flow was

against us statewide.”

Purdue declined to comment

on the specifics of the West Vir-

ginia case, but said in a statement

to The Post that it “vigorously

denies” the allegations in law-

suits, calling them “misleading

attacks.”

“We believe that no pharma-

ceutical manufacturer has done

more to address the opioid addic-

tion crisis than Purdue, and since

2000, we have pursued more than

60 different initiatives in collabo-

ration with governments and law

enforcement agencies on this dif-

ficult social issue,” the company

said.

Three years after the settle-

ment in West Virginia, Purdue

and three of its executives plead-

ed guilty in federal court to fraud-

ulently marketing OxyContin and

agreed to pay more than

$600 million.

Questions linger

The settlement in West Vir-

ginia did little to stop the flow of

pain pills or provide help to

thousands of struggling families.

By 2006, neonatologist Stefan

Maxwell at the Charleston Area

Medical Center was worried that

half of the 30 beds in his NICU

were occupied by newborns who

had been exposed to opioids.

Nurses raced between babies who

would twitch, shake and refuse to

eat. Their limbs stiffened, as if

gripped by a seizure. The screams

of the babies, an almost animalis-

tic whine, would go on and on.

Some were already wards of

the state, bound for the homes of

strangers.

Court Judge Booker T. Stephens

in October 2004. “Abusers freely

chose to abuse it.”

There would be no trial. One

month later, Stephens called both

sides into his chambers. For

weeks, the lawyers had fought

over a potential settlement. The

state wanted Purdue to pay as

much as $75 million. Purdue was

offering $2 million, McGraw said.

McGraw said he was hearing

from top state officials at the

time, concerned that doctors,

pharmacists and insurance com-

panies opposed the litigation.

“As one messenger said to me,

‘They’re really unhappy in the

office where I work,’” McGraw

said. “I know from politics in

West Virginia that anything anti-

business is forbidden.”

The state’s lawyers had

amassed a series of documents

about Purdue’s marketing and

sales practices. But in the judge’s

chambers, as jurors were being

seated for a trial, the state struck

a deal.

Purdue would pay $10 million

over four years and admit no

wrongdoing. The drugmaker

would also receive public ac-

knowledgment of its “financial

support... in partnership with

the attorney general” when set-

tlement money was given to vari-

ous initiatives, court records

show.

“I think we’ve done some good

things here today on behalf of the

state of West Virginia and Purdue

Pharma,” Stephens told the law-

yers.

At the time, $10 million was a

record amount for an opioid lia-

bility lawsuit. McGraw said the

case set a legal precedent but that

Purdue’s payout was not “satis-

West Virginia Legislature have

invested more resources into the

child welfare system than any

other administration,” Crouch

said in a statement after the

lawsuit was filed. “We have been

consistent and deliberate in our

commitment to the safety and

well-being of West Virginia’s chil-

dren.”

Child welfare advocates say far

more needs to be done.

“We’re in the midst of losing an

entire generation,” said Rahul

Gupta, former commissioner for

the West Virginia Bureau for

Public Health. “For other states

... let’s not make the same mis-
takes that West Virginia did.”

A deal with Purdue

Eighteen years ago, the newly

appointed director of the state’s

Public Employees Insurance

Agency pored over a stunning set

of numbers: Prescriptions for the

relatively new painkiller OxyCon-

tin were costing the state hun-

dreds of thousands of dollars.

“What in the world is this?”

Tom Susman had asked his staff.

He notified state legislators. It

wasn’t as if OxyContin was the

cure for cancer.

As costs climbed at other state

agencies and media accounts

warned of a growing problem

with addiction, the state’s then-

attorney general, Darrell

McGraw, decided to sue OxyCon-

tin manufacturer Purdue Phar-

ma.

Purdue quickly mobilized,

sending top executives to

Charleston. McGraw, who re-

counted the meeting to The

Washington Post, said they urged

him to call off the planned law-

suit.

McGraw said he politely re-

fused. Purdue declined to com-

ment on the meeting.

Weeks later, the state filed suit

in McDowell County, the heart of

coal country.

At the time, the legal questions

were novel and complex: Could a

state hold a major drug company

responsible for widespread ad-

diction?

West Virginia’s lawyers were

up against a powerhouse defense

team. Purdue would bring in Eric

H. Holder Jr., a former deputy

U.S. attorney general who would

go on to advise Barack Obama

during the 2008 presidential

campaign and ultimately lead

Obama’s Justice Department.

“The doctors freely chose to

prescribe OxyContin,” Holder

told McDowell County Circuit

nies pay to help offset the fallout
of widespread addiction — a re-
ported $8 billion annually in
West Virginia alone.
Eighteen years later, as a feder-
al judge in Ohio prepares to hear
a historic series of opioid lawsuits
waged by plaintiffs nationwide,
West Virginia’s journey provides
a case study in how legal battles
against drug companies can fail
to balance the scales, leaving
behind more conflict than resolu-
tion in communities still reeling
from the crisis.
In West Virginia, which has the
highest opioid death rate in the
country, officials settled the four
cases for a total of $94 million.
In comparison, Oklahoma set-
tled two opioid-related cases this
year, one with Purdue and the
other with Teva Pharmaceuticals,
for a total of $355 million. In late
August, a judge ordered Johnson
& Johnson to pay the state
$572 million. If the decision is
upheld, Oklahoma stands to re-
ceive nearly $930 million.
West Virginia’s “94 million is
barely a drop in the bucket given
the size of the problem,” said
Steve Roberts, president of the
state’s Chamber of Commerce.
“Not unlike a plague, everyone
knows a family that has lost a
loved one to addiction.”
Over the course of the state’s
lawsuits, politicians accused
their rivals of playing into the
hands of drug companies. News-
papers raised questions about
conflicts of interest. Lawmakers
criticized the state’s former attor-
ney general for spending settle-
ment money on pet projects. Au-
ditors found money was misman-
aged. State officials fought over
how to allocate it.
West Virginia spent $24 mil-
lion of the settlements on legal
fees to private lawyers and more
than $20 million on drug treat-
ment facilities. All the while, the
state’s child welfare crisis mount-
ed.
Nearly 6,900 children are in
state care, double the number
from a decade ago. Officials esti-
mate that more than 80 percent
have been impacted by the drug
epidemic.
For more than a decade, foster
homes and emergency shelters
have been short of beds. Case-
workers with sleeping bags and
baby formula have shuttled chil-
dren to overnight stays in motels
or state offices. Billboards have
gone up along the highways, call-
ing on commuters to open their
homes.
In hard-hit Lincoln County,
west of Charleston, caseworker
Seana Harrison said she began to
hunt for bed space in the mid-
2000s and found herself driving
children to foster homes that
were hours away, their keepsakes
in tow. One child took a stuffed
bear, another a pillow wrapped in
his father’s flannel shirt.
“I have times when I am so
angry I can’t see straight,” said
Harrison, who worked at a pri-
vate social service agency. “There
are never enough homes. There
are never enough beds.”
In McDowell County, in the
southernmost corner of West Vir-
ginia, social worker Tina Wil-
liams filled the trunk of her car
with an emergency supply of
diapers and baby formula.
As a caseworker for the state
from 2001 to 2016, she once drove
to the hospital to pick up a
drug-exposed newborn with no
place to go, took him to a local
motel and rocked him through
the night. She accompanied a
third-grader to a cemetery to
bury his mother, his father al-
ready dead from an opioid over-
dose.
“Where’s Mommy?” the boy
had asked.
“Mommy’s asleep,” Williams
had answered.
Then it was back inside her car,
with blankets and snack packs.
In late September, a national
child advocacy group and others
filed a class-action lawsuit
against West Virginia in federal
court, arguing the child welfare
system has for years “operated in
a state of crisis.” No other state
removes more children from
their homes per capita than West
Virginia, national data shows.
Bill Crouch, secretary of the
Department of Health and Hu-
man Resources since 2017, said
his agency has worked to hire
caseworkers, increase their pay
and create more emergency bed
space.
“This administration and the

OPIOIDS FROM A

Settlements

fall far short

of covering

expenses

The opioid Files

CLOCKWISE FROM TOP LEFT: Children play basketball at an emergency shelter in Northfork, W.Va. Tina Williams quit her longtime job as a state

caseworker after she started having nightmares. “It was drugs, drugs, drugs,” she said. A foster child sits on a swing at the Northfork shelter.

Source: West Virginia court records BRITTANY RENEE MAYES/THE WASHINGTON POST

West Virginia opioid lawsuit settlements

Over the past 15 years, the state of West Virginia settled four lawsuits

against opioid manufacturers and distributors for $94 million. In three of

the four cases, one-third of the money went to legal fees for the lawyers

hired by the state.

McKesson

Corp.

$37M

Cardinal Health

$20M

Purdue Pharma

$10M

Lawyer fees

Settlement

amount

$3.3M

$4.85M $9M

$6.7M

$27M

AmerisourceBergen

and smaller distributors