by Patrick Morrisey
The importance of defeating the opioid crisis has been — and remains — a top priority for the Attorney General’s Office.
For years, our office has used every legal maneuver to stem the flow of unnecessary opioids and ensure that West Virginia’s aggregate recovery can help our state, as well as its cities and counties, actually fix the problem.
Our actions against the federal government have led to sweeping reform of the nation’s drug quota system, while our pursuit of distributors and manufacturers has positioned the state of West Virginia and local governments to fare very well.
Yet, unfortunately, two recent editorials on these pages opined wildly inaccurate assumptions based upon misinformation and incomplete research.
First, the authors failed to recognize how the latest intelligence and experts agree that fentanyl from Mexico drives a great number of today’s overdose deaths.
The U.S. Drug Enforcement Administration’s 2020 Threat Assessment states Mexican cartels have the greatest direct impact on the fentanyl market in the United States, while state statistics show a greater than 700% increase in fentanyl-related deaths from 2015 to 2020.
In fact, the state Department of Health and Human Resources blames fentanyl for 74.5% of all drug-related deaths in 2020.
Such alarming stats demand action.
The lawsuit against Homeland Security — like our victory in reforming the DEA’s drug quota system — strives to ensure bad policy does not lead to an even greater death toll and flood of illegal opioids.
Reassigning personnel away from interdiction will lead to a more porous border suitable to drug trafficking, yet the Biden administration has remained silent on this issue in its attempts to end his predecessor’s “Remain in Mexico” policy.
Our office strived to avoid a lawsuit and long believed that one should not be necessary. Yet the administration has failed to respond to our concerns, and in the face of fentanyl killing so many, litigation was West Virginia’s only remedy.
Secondly, had the authors given our office a call, we would have welcomed the opportunity to explain how years of work by our team expressly carved counties and municipalities out of a heavily publicized agreement and positioned them and our office to maximize a recovery based upon the severity of harm imposed on West Virginians.
This is great for our state.
Rather than concede and accept a broad agreement that favored the nation’s largest population centers, West Virginia, as well as its cities and counties, are now set to litigate and negotiate toward a resolution that is best for our citizens.
That clears the way for an April 2022 trial date, just ordered, in our office’s case against opioid maker Johnson & Johnson, increasing the state’s leverage against the fourth company involved in the national settlement.
Regarding the other three companies, the state’s $73 million in settlements with the nation’s largest distributors were just the beginning.
Each of those agreements expressly preserved the ability of cities and counties to pursue opioid claims affecting their individual jurisdictions — exponentially increasing the potential recovery for West Virginia as a whole.
Imagine our surprise when this newspaper’s initial editorial seemingly suggested that West Virginia would be better off to now concede, and by its math, accept a broad, national settlement that would have left the state’s cities and counties to divide $47 million between themselves, not to mention the state’s portion to resolve still active claims against opioid maker Johnson & Johnson.
That’s a far cry from the amount sought by Huntington and Cabell County against those same defendants — just two of more than 100 city and county plaintiffs pursuing claims in West Virginia.
Instead, the $73 million in initial settlements reached by our office represents just a very small component of the larger picture and the reason for why we remain so optimistic. West Virginians will end up having one of the best settlements in the nation.
The national settlement models allocate 15% for state claims (i.e., the $73 million), 15% for city/county claims and 70% for abatement.
Better yet, our efforts helped ensure the national settlement excluded West Virginia, as well as its cities and counties, from any most favored nations clause, meaning there is no disincentive for the companies involved to negotiate a larger recovery than the West Virginia entities would have received via the national settlement.
These efforts are not new.
In February, our office reached a $10 million settlement with McKinsey & Company Inc., an independent negotiation that resulted in West Virginia receiving a much higher dollar amount per capita than a multistate settlement with the same company.
Two months later, Bloomberg News accurately recognized that West Virginia was one of only two states where the attorney general “insisted that their deals with the consulting company (McKinsey) wouldn’t prohibit local officials from bringing their own lawsuits.”
When unfair, population-based settlement negotiations are not relevant, we feel certain that West Virginia can negotiate a better deal. With regard to the highly publicized distributor settlement, West Virginia is positioned to gain a significantly higher recovery through her cities and counties thanks to our office’s work in carving them out of the prior agreements. Saying something otherwise is just factually inaccurate.
Eradicating opioid abuse and senseless death is the challenge of our time.
Whether it be cutting off unnecessary supply or fighting in pursuit of the greatest recovery, we remain very aggressive in a holistic attack on the root causes of opioid abuse in hopes of helping West Virginia reach her full potential.
Patrick Morrisey is the attorney general of West Virginia.
