Opioid lawsuits filed for children with NAS

December 16, 2018
Booth Goodwin, candidate for W.Va. Governor

CHARLESTON - A Charleston law firm is hoping to give a voice to the youngest victims of the opioid epidemic affecting all of Appalachia by filing lawsuits against major opioid manufacturers and producers.

Charleston attorney Booth Goodwin, of Goodwin & Goodwin LLP, said his law firm is evaluating nearly 200 cases of children - most of whom are based in Southern West Virginia - who experienced drug withdrawal symptoms after birth, some of whom have been diagnosed with neonatal abstinence syndrome (NAS).

While the cases are similar to that of more than 1,400 filed nationwide by states, counties and municipalities alleging opioid companies fueled opioid drug abuse by pumping their drugs into local communities, Goodwin says the cases involving babies are unique in their own way and should not be lumped in with the others.

A federal court ruled earlier this month that some lawsuits filed on behalf of children diagnosed with NAS should be overseen by the same judge as the 1,400 other cases, but Goodwin, a former U.S. attorney for the Southern District of West Virginia and 2016 gubernatorial candidate, is continuing his fight to keep his cases separate with one idea in mind - making sure the voice of the victim is heard.

The first case

Beverly and Andrew Riling, of Wyoming County, West Virginia, never saw themselves becoming new parents in their 50s, but after adopting their grandchild, 11-year-old Andriana, their lives have started all over again, Goodwin said.

“Her case is just kind of typical for what you hear from throughout Southern West Virginia,” he said. “She lost her father even before she was born in a drug-related car accident. Her birth mother is hopelessly addicted to pills and opioids in general.”

Due to her mother’s dependency issue, Andriana was diagnosed with NAS at birth. She has two siblings who, while not diagnosed with NAS, showed possible signs of having the syndrome.

NAS is reported in more than 5 percent of all live births in West Virginia, according to the West Virginia Birth Score Program. The syndrome was present in 5.46 percent of live births in the region of Boone, Cabell, Clay, Kanawha, Lincoln, Logan, Mason, Mingo, Putnam and Wayne counties from 2016 to 2017.

Riling’s case is the first Goodwin has filed on behalf of NAS patients. It names as defendants Purdue Pharma, Endo Health Solutions and Pharmaceuticals, McKesson Corp., Cardinal Health, AmerisourceBergen and Mallinckrodt.

Those places created or distributed pills her mother abused while pregnant.

Goodwin keeps a picture of the young girl sitting on her grandmother’s lap as a reminder of the children affected by the opioid epidemic by no fault of their own. He said he knows there are hundreds of cases out there similar to the Riling family, and hopes every victim can recuperate some money for the physical and emotional trauma they have suffered.

More than 1,400 cases

The filings against opioid manufacturers, distributors and pharmacies started in West Virginia after a 2016 Charleston Gazette-Mail investigation revealed similar data, stating between 2007 and 2012 that the “Big Three” distributors - McKesson Corp., Cardinal Health and AmerisourceBergen Drug Corp. - shipped 423 million pain pills to West Virginia, which has about 1.8 million citizens, before the number of pills started to decrease.

The lawsuits allege the groups breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the locations over the past several years - a duty the lawsuit claims companies had under the Controlled Substance Act of 1970.

Since initial filings by Cabell County and the city of Huntington, dozens of other West Virginia, Ohio and Kentucky counties and municipalities have joined. The cases, which have grown to more than 1,400 nationwide, were grouped into a multidistrict litigation (MDL) centralized in a federal court in Cleveland.

Those cases were placed together to help the cases proceed quicker by having one judge rule on motions and oversee settlement discussions rather than having dozens of judges hear the arguments across the United States.

Cleveland-based federal judge Dan Polster is pushing for the 1,400 cases to be settled in a way to address business practices regarding opioids and potentially give money for those harmed by the toll of addiction.

Attorneys avoiding Cleveland, even with judicial ruling

Goodwin argues that the cases his group is taking on are so unique - mostly due to the victims having no blame in becoming dependent on the opioids taken by their parents - that including them in Cleveland would not be in the best interest of anyone.

“Each one of them is affected a little bit different,” he said. “And we want to make sure that we focus on each one of these individual children.

“I really think that we lose the real human toll that the opioid crisis has taken if we’re not bringing cases on behalf of actual human beings who were victimized by the flood of pills that were pumped in here.”

Several lawsuits have been filed on behalf of those diagnosed with NAS. Attorneys in those cases were seeking their own individual MDL, but the Judicial Panel on Multidistrict Litigation denied the request earlier this month and said the lawsuits should be included in the Cleveland MDL.

An organizational structure set up in the Cleveland MDL has about 16 representatives who give a voice to each type of plaintiff - government entities, hospitals and independent filers. The Judicial Panel judges said the victims could be represented under one of those branches, as directed by Polster.

Individualized approach

Even with that ruling, Goodwin is fighting against the same results by taking an individualized approach to each of his cases by not lumping them into a class-action lawsuit and focusing on the unique details of each case, he said.

All the lawsuits focus on the defendants’ alleged wrongful conduct, Goodwin said, but the MDL lawsuits focus on the defendants’ alleged failure to follow laws and standards put into place, whereas the NAS lawsuits focus on the individual’s pain and suffering in being born with drug dependency.

A transfer order was filed in the Riling case to send it to Cleveland earlier this month, but attorneys representing Riling filed a motion Tuesday to block the move. Goodwin said one of the reasons the Judicial Panel ruled in favor of sending the other cases to Cleveland was because they had not contested the transfer order.

If the block is successful, the case could be used as a starting point for similar cases in the future.

“The complaint contains very specific allegations, unique to this case, with respect to prescribing doctors and pharmacies,” attorneys wrote in their request for the transfer to be denied. “Although there are generalized facts at issue in both (the Cleveland cases) and the Rilings’ case regarding the reprehensible conduct of the defendants, this overlap is minor.”

The attorneys allege the differences, including time period, causation and damages, make the case unique enough for it to remain in West Virginia.

″(The Cleveland cases) potentially involve comparative fault on the part of the plaintiffs, while Riling, a child born opioid dependent, is an innocent victim who is inherently and completely blameless,” they wrote.

The waiting game

A hearing will be held after the defendants in Riling’s case respond to the plaintiff’s argument.

In the meantime, Goodwin is reviewing 200 cases throughout Appalachia, and he believes there are countless additional clients.

“It’s absolutely devastating what effect opioids have had on our region,” he said. “But those effects are even more pronounced when you’re dealing with infants.”

Goodwin, The Calwell Practice and the Law Offices of P. Rodney Jackson have set up a website at AddictedBabies.com seeking new clients who think they might fit into this category.

Follow reporter Courtney Hessler at Facebook.com/CHesslerHD and via Twitter @HesslerHD.

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