A West Virginia lawmaker is asking Attorney General Patrick Morrisey to sue the nation's largest prescription drug distributor, but Morrisey's office says it won't consider doing so until it completes an investigation of McKesson Corp. that started 18 months ago.
In a letter sent recently to Delegate Don Perdue, D-Wayne, Morrisey's deputy, Vaughn Sizemore, said the attorney general won't file suit against San Francisco-based drug giant McKesson until he determines whether the company broke any state laws.
Morrisey's office filed a subpoena for McKesson's drug shipment records in March 2014. The office has compiled "substantial data" about McKesson's drug distribution practices in West Virginia, according to Sizemore's letter.
"We are enforcing a subpoena, a very serious thing, in order to more closely examine this matter," said Morrisey spokesman Curtis Johnson.
On Oct. 2, Perdue sent a letter to Morrisey, urging him to honor a request from two state agency heads - Health and Human Resources Secretary Karen Bowling, and Military Affairs and Public Safety Secretary Joe Thornton - to add McKesson as a defendant in an existing state lawsuit against another dozen out-of-state drug wholesalers.
The lawsuit alleges that the companies helped fuel West Virginia's prescription drug problem by filling suspicious orders from "pill mill" pharmacies across the state.
Thornton and Bowling asked Morrisey to sue McKesson in September 2014, but the attorney general has not done so, citing his ongoing investigation.
Perdue said McKesson must be added to the lawsuit so the state can determine each drug wholesaler's pain-pill market share in West Virginia - and their potential liability for the state's prescription drug problem.
"It is unfair that the firms that have been confronted with this litigation - and could be held responsible and liable - represent only four-fifths of the problem," Perdue said. "They have a right to complain they're not being treated the same as McKesson."
Sizemore's letter to Perdue also suggests that Morrisey and McKesson have signed an agreement, waiving McKesson's right to claim that any future lawsuit be dismissed because the "statute of limitations" expired.
"It simply freezes the statute of limitations to allow time for the investigation to be conducted," Sizemore wrote. "Not obtaining a tolling agreement would have resulted in the state forfeiting claims in the event a lawsuit is filed."
Perdue said he was worried that Morrisey's "side deal" with McKesson might jeopardize the state's hopes to add the prescription drug wholesaler to the existing lawsuit. The other companies being sued don't have such an agreement with the state.
The Gazette-Mail asked for a copy of the McKesson agreement last week, but Morrisey did not release it.
Morrisey's office dismissed Perdue's concerns and accused him of playing politics.
"You know political opponents are grasping at straws when they characterize a tolling agreement to protect the state's claims as somehow being a negative thing," Johnson said.
Last fall, Morrisey's office solicited bids for outside lawyers to help with an investigation of McKesson, but Morrisey never awarded the contract. Six law firms have had bids on the table for more than a year.
"To date, the investigation has been totally in-house, so any media coverage or other information into the status of the McKesson investigation or the reasons for any actions taken by this office is nothing more than conjecture and speculation," Sizemore wrote to Perdue.
Before taking office in 2013, Morrisey spent two years lobbying for the Healthcare Distribution Management Association, an Arlington, Virginia-based trade group that represents McKesson and other prescription drug wholesalers. Morrisey's lobbying work netted $250,000 for his Washington, D.C., law firm, King & Spaulding, according to federal lobbyist disclosure forms.
The president of McKesson's pharmaceutical unit sits on HDMA's executive board. A McKesson vice president contributed to Morrisey's campaign in 2012.
Morrisey faces an ethics complaint over his ties to the trade group and the pill distributors it represents. The complaint - filed with the state Office of Disciplinary Counsel by a Milton businessman - alleges that Morrisey has an "incurable conflict of interest" with his office's lawsuit against drug wholesalers.
Morrisey has said the lawsuit doesn't pose a conflict.
Earlier this year, a court filing in the case revealed that the drug distributors shipped more than 200 million doses of hydrocodone and oxycodone to West Virginia between 2007 and 2012.
But that total excluded shipments from McKesson. West Virginia's actual pain-pill delivery numbers are expected to be significantly higher.
If Morrisey gives the go-ahead and the state adds McKesson as a defendant in the lawsuit, the company's shipping records would likely be released in court documents.
Last month, the drug companies being sued filed a writ of prohibition with the state Supreme Court, seeking to halt the case.
Reach Eric Eyre at ericeyre@wvgazettemail.com, 304-348-4869 or follow @ericeyre on Twitter.