West Virginia Attorney General Patrick Morrisey gave "specific instructions" for his office's lawsuits against drug giant Cardinal Health and other pain pill wholesalers, while Cardinal Health was paying Morrisey's wife to lobby for the company in Washington, D.C., according to federal lobbying disclosures, court records and an email that Morrisey has fought to keep secret for more than two years.
Morrisey disputes that the email and documents show that he played any part in the Cardinal Health lawsuit.
The email sent by Morrisey's former chief deputy, Dan Greear, also reveals that Morrisey and Greear wanted to attend a May 2013 court hearing about the Cardinal Health case - along with a companion case against a dozen other drug wholesalers - to refute allegations "that the AG does not control the litigation." The hearing was postponed because Morrisey and Greear couldn't be there, court records show.
Greear's email and the court records contradict Morrisey's repeated assertions over the past two years that he stepped aside from the Cardinal Health lawsuit when he took office in January 2013.
Morrisey has resisted requests to release the email since September 2013. The Gazette-Mail obtained a copy of the email last week.
Morrisey issued a prepared statement Saturday afternoon denying that he gave instructions to Greear about the Cardinal Health lawsuit. He said he issued instructions only for the second lawsuit against the other drug wholesalers.
"Any statement by anyone suggesting otherwise would be contrary to my explicit instructions," Morrisey said.
The Cardinal Health lawsuit, which Morrisey inherited from former Attorney General Darrell McGraw, alleges that the drug distributor helped to fuel Southern West Virginia's problem with prescription drugs by shipping an excessive number of pain pills to the region. The case has dragged on for more than the three years with few developments. President Barack Obama spotlighted West Virginia's opioid epidemic - the state has the highest drug overdose death rate in the nation - during a visit to Charleston Wednesday.
The email sent by Greear to Charleston lawyer Jim Cagle, who is helping the Attorney General's Office with the case, specifically references Cardinal Health, but mentions no other drug company by name.
In the May 6, 2013, email, Greear discloses that he talked about the Cardinal Health lawsuit with the company's Charleston lawyer, Mark Carter, a Morrisey political ally and former co-chairman of the attorney general's campaign transition team after Morrisey defeated longtime McGraw in the November 2012 election.
Greear and Morrisey later met privately with Carter and Cardinal Health executives May 22 that year, according to a letter Carter had hand-delivered to Morrisey on June 21, 2013.
The letter's header says, "Re: State of West Virginia, Patrick Morrisey v. Cardinal Health," and references the lawsuit's case number in Boone County Circuit Court. It starts, "Dear General Morrisey..." Carter also requested a follow-up meeting with Morrisey.
Morrisey has said the meeting was about substance abuse - not the lawsuit.
During those same months - April through June 2013 - Morrisey was meeting with Cardinal Health officials and giving Greear instructions about the case, the prescription drug wholesaler paid $110,000 to Morrisey's wife, Denise Henry, and her Washington, D.C., lobbying firm, Capitol Counsel, according to a quarterly lobbying disclosure report filed with the U.S. Senate.
Since Morrisey has taken office, his wife's firm has received $1.47 million from Cardinal Health for lobbying work on Capitol Hill.
Morrisey also was a former lobbyist for a national trade group - Health Care Distribution Management Association - that represents Cardinal Health and other drug wholesalers being sued by the Attorney General's Office.
Cardinal Health executives donated $4,000 to Morrisey's campaign in 2012, $3,000 of which came after McGraw's office filed suit against the company. A Cardinal Health vice president also contributed $1,000 to Morrisey's campaign in December 2012, a month after he defeated McGraw.
Cardinal Health, the second-largest prescription drug distributor in the U.S., paid $2,500 toward Morrisey's inaugural party after he won election.
In his statement Saturday, Morrisey disclosed that he talked with retired West Virginia University law professor Jack Bowman about the Cardinal Health lawsuit in April 2013. Bowman advised him that he could take part in the case, but Morrisey said he elected not to.
Morrisey released a statement from Bowman Saturday.
"Based upon my review, it has been and remains my belief that Attorney General Morrisey would be ethically permitted to participate in the Cardinal Health case," Bowman said. "Based upon the information provided to me, I do not believe that a legal conflict exists under West Virginia rules. Any decision to step aside was purely voluntary and went further than the rules require."
In May 2013, Greear and Cagle wanted to use Cardinal Health and other drug wholesaler shipping records to identify local "pill mill" pharmacies that dispensed an excessive number of pain medications.
Greear alerted Cagle that he had spoken to Carter, who represents Cardinal Health, and to Dave Barnett, a lawyer for Miami-Luken Inc., one of the other prescription drug distributors being sued by the Attorney General's Office, according to the May 6, 2013, email, whose header references "state pill mills cases."
"I have discussed this with the AG and he has given me specific instructions," Greear wrote to Cagle, and then listed the instructions.
Greear told Cagle that Morrisey wanted a court hearing postponed. A Boone County judge had scheduled the hearing to discuss the lawsuits against Cardinal Health and the other drug wholesalers.
"The status conference needs to be continued," Greear wrote. "I advised him [Morrisey] of your concerns."
Greear went on to say that Cardinal Health and other drug distributors might try to get Cagle disqualified from the cases. The drug companies complained to Greear that Cagle and other outside lawyers - called special assistant attorneys general - were controlling the case.
"Part of the objection to the SAAGS [special assistant attorneys general] has been that the AG does not control the litigation," Greear wrote. "If the AG [Morrisey] or I are not at the status conference, that could be used against us to have the SAAGS on this case disqualified. Accordingly, we need to move this hearing."
Morrisey also instructed Greear to "continue talks with defendants" and to identify any drug companies that should be added - or dismissed - from the lawsuits, according to the email.
Two days later, Greear and Cagle filed a motion in Boone Circuit Court, requesting that Judge William Thompson reschedule the status conference hearing for Cardinal Health and the other drug companies, court records show.
The filing - titled "state of West Virginia v. Cardinal Health" - mentions Morrisey by name, shows that Greear and Cagle followed Morrisey's instructions and reveals that the hearing couldn't take place without Morrisey being in the courtroom - all at a time Morrisey would later say he had recused himself from the case.
"The grounds for this motion is that neither Attorney General Patrick Morrisey nor counsel Dan Greear is available to attend said conference," the document states. "Their presence is needed for said conference."
The Charleston Gazette - which recently combined with the Charleston Daily Mail to form the Charleston Gazette-Mail - first reported Morrisey's ties to Cardinal Health in July 2013.
In response, Morrisey released a statement saying he stepped aside from the case "earlier this year" and assigned Greear to manage the case in January 2013.
In the statement, Morrisey indicated that his wife's long-time work for Cardinal Health - and the company's campaign contributions - didn't prompt his decision to step aside from the lawsuit.
Instead, Morrisey alleged that McGraw "implied" to him at a 2012 parade that McGraw filed the Cardinal Health lawsuit to retaliate against Morrisey's campaign.
"While McGraw's statements disturbed me greatly and led me to believe that at least some part of that case was politically motivated, after I took office I decided that, not withstanding McGraw's comments, West Virginians deserved the case to be decided on the merits," Morrisey said in the July 2013 statement.
He continued: "While not required under the law, because of McGraw's ethically problematic comments, earlier this year, I recused myself from the litigation as it pertains to Cardinal Health."
McGraw has said he never spoke to Morrisey about Cardinal Health or the lawsuit.
The Gazette later requested documents about Morrisey's decision to distance himself from the Cardinal Health lawsuit. Morrisey responded that he recused himself "orally" - not in writing.
Since then, Morrisey has reiterated that he withdrew from the Cardinal Health lawsuit after he took office.
At a town-hall meeting in Martinsburg last December, Morgan County USA reporter Russell Mokhiber asked Morrisey when he stepped aside from the Cardinal Health lawsuit.
Morrisey responded: "Right, so I said I have not been involved in that case from the beginning of the year.
In January 2014, a Gazette reporter asked the same question at The Associated Press' Lookahead event in South Charleston.
Morrisey said: "So I've said I wasn't involved. I wasn't involved in this case. I've said that all along."
Last year, the Gazette asked Greear to cite the specific date that Morrisey stepped aside from the Cardinal Health lawsuit.
"I know what you're asking," Greear said. "I'm going to let him [Morrisey] parse those things. I know exactly what you're asking.
"I'm leaving that one to him," Greear continued. "That one is above my pay grade. I understand that, but I'm not going there."
Last month, Kanawha County Circuit Judge Charles King ruled that Morrisey didn't have to release Greear's May 2013 email and other records that could shed light on Morrisey's role in the Cardinal Health lawsuit.
The Charleston Gazette filed a lawsuit against the attorney general last year after he refused to release the documents to the newspaper, which requested them under the state Freedom of Information Act.
King's ruling - copied word for word from a proposed order submitted by Morrisey's general counsel Misha Tseytlin - concludes that the May 6, 2013, email does not indicate whether Morrisey "was or was not involved in the Cardinal Health lawsuit."
King's order also states, "[Morrisey] is not mentioned" in the first part of the email.
The ruling neglects to mention that Greear references the attorney general three times in the same email.
King also cited "attorney-client privilege" as another reason Morrisey didn't have to release Greear's email.
"...The communications in the email are clearly intended to confidential," King wrote in a Sept. 14 order, "and revealing those communications would give to those defendants that the state has sued insights regarding the state's litigation strategy."
Greear and Cagle declined to comment for this story.
The West Virginia Office of Disciplinary Counsel is investigating Morrrisey. A Huntington businessman filed a complaint, alleging Morrisey has an "incurable conflict of interest" with his office's lawsuits against the drug wholesalers. The lawyer discipline board has declined to comment on the investigation.
In an email to the Gazette-Mail's lawyer Saturday, Tseytlin, warned that the newspaper would face repercussions for publishing a story about Greear's email.
"It is deeply disturbing that [the Gazette-Mail] appears willing to publish a document that is protected by the attorney-client privilege and sealed by a court order," Tseytlin said. "I urge your client not to violate the court order, risk sanctions, and in the words of Judge King, 'compromise' the state's 'vital interests.'"
Reach Eric Eyre at ericeyre@wvgazette.com, 304-348-4869 or follow @ericeyre on Twitter.