MADISON - Eleven out-of-state drug companies plan to ask the state Supreme Court to put the breaks on a lawsuit that alleges the firms shipped an excessive number of pain pills to West Virginia and contributed to the state's prescription drug problem.
On Thursday, lawyers for the drug wholesalers told Boone County Circuit Judge William Thompson that they would file a "writ of prohibition" with the Supreme Court by Oct. 15.
The prescription drug distributors object to Thompson's recent rulings in the case. Earlier this month, Thompson rejected the drug companies' request to dismiss the lawsuit. The firms argue the state doesn't have sufficient grounds to sue them, and that they can't be held accountable for the painkillers prescribed by doctors and sold by pharmacies in West Virginia.
Thompson said he would put a temporary halt to some lawsuit activities until the Supreme Court decides whether to hear the drug companies' objections. Two state agencies - the Department of Health and Human Resources, and the Department of Military Affairs and Public Safety are suing the drug distributors.
"I would hope the Supreme Court would take this up quickly because of the complexity of this case," Thompson said during Thursday's hearing in Boone County.
At the hearing, Thompson set a trial date for Oct. 11, 2016. Lawyers for the two sides also will take a second crack at settling the lawsuit through mediation in April.
State lawyers have criticized the drug firms for delay tactics. The lawsuit has dragged on for more than three years. The drug wholesalers wanted Thompson to put a complete halt to the case until the Supreme Court decided whether to intervene.
"They're asking you to stop the proceedings now," said Jim Cagle, a Charleston lawyer representing the state through the attorney general's office. "This case needs to move forward."
Also Thursday, Thompson gave both sides 10 days to submit proposed court orders that would spell out how confidential information should be handled as the lawsuit proceeds.
Cagle said the public has the right to see the companies' pill shipment records and other documents that show why the state is suing the drug wholesalers. The drug firms seek to hide the "meat and substance" of the allegations against them, he said.
"The public has the right to know what's going on in the public courts," Cagle told the judge Thursday. "It belongs in the public domain."
The drug wholesalers argue that the two sides agreed a year ago to a "protective order" that allows "highly confidential" information to be kept out of the court file that's available to the public. Charleston lawyer Al Emch, who's representing drug giant AmerisourceBergen, said the companies want to shield proprietary information, such as sales data, from their competitors.
"The defendants and private entities, private businesses, heavily regulated by the state and federal government, that are competitors of one another," Emch said. "Understandably, they do not like to have information relating to their internal workings and the customers of their businesses shared with their competitors."
The lawsuit - initially filed by former Attorney General Darrell McGraw in 2012 - alleges that the 11 drug wholesalers shipped an excessive number of painkillers to "pill mill" pharmacies in West Virginia. The companies also failed to report the "suspicious" orders to government authorities, according to the suit.
West Virginia has the highest prescription drug overdose death rate in the nation.
In a revised complaint filed earlier this year, the state's lawyers disclosed that the 11 drug distributors shipped nearly 60 million oxycodone pills and 140.6 million hydrocodone pills - both are powerful and addictive painkillers - to West Virginia between 2007 and 2012. The updated lawsuit included pill counts for each wholesaler. The pain-pill numbers were culled from a U.S. Drug Enforcement Administration database.
In the new complaint, the state's lawyers also named "pill mill" pharmacies - such as Trivillian's in Kanawha City and Sav-Rite in Mingo County - that received excessive numbers of painkillers from some of the drug wholesalers. Trivillian's former owner, Paula Butterfield, pleaded guilty to federal charges in February. Butterfield was sentenced to a year and a day to federal prison.
The revised complaint also includes allegations that some of the drug firms paid fines and received penalties for failing to monitor suspicious prescription drug orders in other states. The wholesalers argued those past sanctions were irrelevant, and the allegations should be tossed from the lawsuit in West Virginia.
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.
Officials with DHHR and Military Affairs have asked Attorney General Patrick Morrisey to add McKesson Corp., the nations largest drug distributor, as a defendant in the case. Morrisey's office has declined, citing its ongoing investigation into McKesson's drug sales in West Virginia.
The state has a separate lawsuit - also filed in Boone County - against the nation's second largest drug wholesaler, Cardinal Health.
Reach Eric Eyre at ericeyre@wvgazette.com, 304-348-4869 or follow @ericeyre on Twitter.