Eleven of the nation's largest drug distribution companies are trying to stall a lawsuit because they want to conceal their role in West Virginia's prescription drug epidemic, the Attorney General's Office and two state agencies allege in a response filed with the state Supreme Court this week.
The state agencies have asked justices to reject the drug wholesalers' request to put a halt to the lawsuit, which has dragged on for three years and five months. The state alleges that the out-of-state prescription drug distributors have "deployed a series of delay tactics to try to stop this case in its tracks."
In late October, the drug wholesalers filed a "writ of prohibition" with the state Supreme Court, alleging that Boone Circuit Judge William Thompson "committed clear error" by refusing the companies' repeated requests to dismiss the lawsuit.
In a response filed with the Supreme Court this week, Attorney General Patrick Morrisey's office, the Department of Health and Human Resources and the Department of Military Affairs and Public Safety assert that Thompson got it right - and that the companies' dash to the Supreme Court was a "thinly disguised attempt to appeal a non-appealable order" by Thompson allowing the case to proceed.
The agencies say the drug companies want to avoid having to answer questions about whether they've complied with West Virginia laws that require them to monitor and report suspicious prescription drug orders from "pill mill" pharmacies.
The lawsuit - filed by former Attorney General Darrell McGraw in 2012 - alleges the 11 drug wholesalers shipped an excessive number of pain pills to West Virginia.
U.S. Drug Enforcement Agency records show the companies distributed 60 million oxycodone pills and 140.6 million hydrocodone pills to West Virginia between 2007 and 2012, according to the lawsuit. Oxycodone and hydrocodone are powerful painkillers.
"Here, the drug distributors shipped hundreds of dosage units of oxycodone into West Virginia ... which included extraordinary numbers of addictive controlled substances shipped to notorious pill mills," lawyers for the state agencies wrote in this week's filing.
The drug wholesalers' practices have contributed to a high percentage of West Virginia babies being born addicted to drugs and a fourfold increase in drug overdose deaths, the state alleges.
In their filing with the Supreme Court in late October, the drug companies argued that they couldn't be held liable for West Virginia's prescription drug problem
The drug firms said only the state Board of Pharmacy has the power to sanction them - not the three state agencies suing the companies. The pharmacy board isn't taking part in the lawsuit.
The drug wholesalers have noted that the Board of Pharmacy has never taken disciplinary action against them. The board recently renewed the companies' permits to distribute prescription drugs in West Virginia.
In this week's filing, the state agencies called the companies' arguments "bizarre." The pharmacy board's authority to issue licenses doesn't give the drug wholesalers immunity against lawsuit claims for damages, the state said. And just because the board recently renewed their licenses doesn't prove the companies did nothing wrong, according to the state's response to the Supreme Court.
"In sum, the drug distributors profited from the prescription drug epidemic by selling controlled substances to pill mills, while ignoring state law anti-diversion regulations," the state's lawyers wrote.
The drug companies also have argued they can't be sued under the state's Consumer Protection Act because they never shipped drugs directly to consumers. But the state's lawyers said this week that the act says nothing of the sort.
If the Supreme Court rejects the drug firms' request to halt the lawsuit, the trial is scheduled to start in October 2016. Lawyers for the two sides also will try to settle the case through mediation in April.
Officials with the drug wholesalers, DHHR, Military Affairs and the Attorney General's Office have repeatedly declined to comment on the lawsuit.
The companies named in the lawsuit are: AmerisourceBergen Drug Corp., Miami-Luken Inc., J.M. Smith Corp., the Harvard Drug Group, Anda Inc., Associated Pharmacies, H.D. Smith Wholesale Drug, Keysource Medical, Masters Pharmaceutical, Quest Pharmaceuticals and Top Rx.
Reach Eric Eyre at ericeyre@wvgazettemail.com, 304-348-4869 or follow @ericeyre on Twitter.