Some of the nation's largest drug wholesalers are asking a judge to reject the Charleston Gazette-Mail's request to unseal court records that include details about the companies' prescription pain-pill shipments to West Virginia.
The prescription drug distributors allege the information contained in the sealed court documents is available elsewhere - from the U.S. Drug Enforcement Administration and West Virginia Board of Pharmacy.
"And if those agencies protect any of that information from the intrusive journalistic nose of the Gazette-Mail, then its confidential nature must be respected," wrote A.L. Emch, a lawyer representing AmerisourceBergen Drug Corp., one of the nation's largest drug wholesale companies.
AmerisourceBergen and 10 other out-of-state drug distributors are fighting to keep the court records secret.
Earlier this month, the Gazette-Mail, which has reported extensively on West Virginia's prescription opioid problem over the past two years, filed a motion that asks Boone Circuit Judge William Thompson to unseal a lawsuit complaint filed by the Attorney General's Office and two state agencies against the drug wholesalers.
The newspaper argues that the public has the right to see the specific allegations in the state's lawsuit because it was filed on behalf of West Virginians. The information could shine light on the drug companies' role in the state's pain-pill epidemic.
Thompson has scheduled a hearing at 1:30 p.m. today to consider the Gazette-Mail's request to open the court documents.
In a filing this week, AmerisourceBergen argues that the newspaper's request is "premature, unnecessary ... and ill-advised." The company says the newspaper already has "parroted" many of the "inflammatory and unsupported allegations" in the state's lawsuit.
The drug wholesaler also alleges the state has made "improper disclosures ... printed by the Gazette-Mail," but the company provided no specifics in its court filing this week.
"The premature release of private information is counterproductive," Emch wrote.
Emch noted that the state's lawsuit wasn't a "government enforcement action."
"The bottom line is that this is civil litigation," Emch wrote. "It is not an automatically 'open book' that the Gazette-Mail or any other member of the public is permitted to review."
Harvard Drug Group, another drug wholesaler named in the state's lawsuit, argues that the court documents would disclose sales data that Harvard's competitors could use to their advantage.
"The [lawsuit] complaint contains only one-sided allegations by the plaintiff," wrote David Thomas, a lawyer for Harvard Drug. "They are not facts. If the Gazette-Mail wants to know actual quantities sold to West Virginia pharmacies ... in the context of public health and safety, that information is collected by the Drug Enforcement Agency [sic] and West Virginia Board of Pharmacy."
The state's lawsuit - initially filed by former Attorney General Darrell McGraw and inherited by his successor, Patrick Morrisey - alleges the companies helped fuel the prescription drug problem in West Virginia by shipping an excessive number of drugs to "pill mill" pharmacies.
After Morrisey took office, the two sides agreed to a "protective order" in November 2013 that allows the drug wholesalers to keep some court records under wraps.
More than a year ago, Charleston lawyer Jim Cagle, a special assistant attorney general representing two state agencies and Morrisey's office, filed a proposed order to unseal a revised complaint that includes information about shipments of controlled substances to specific towns and regions of West Virginia. Thompson has yet to rule on the state's request.
"... We have been consistent in the position that the documents should be unsealed since it was filed," Curtis Johnson, a spokesman for the attorney general's office, said in an email.
West Virginia has the highest prescription drug overdose death rate in the nation, and the deaths have increased in recent years.
Reach Eric Eyre at ericeyre@wvgazettemail.com, 304-348-4869 or follow @ericeyre on Twitter.