CHARLESTON, W.Va. —The ward of the state was barely 16 inches long. He slept in a bassinet with a monitor that tracked his heart rate and a heat lamp that warmed his limbs. The isolation room was hushed. The doctors wanted it that way because the three-pound patient in the bright blue T-shirt fussed at even the dullest sounds.
“I’m a boy,” read a note posted in June at the baby’s side in the neonatal intensive care unit in Charleston. He was comforted by a nurse who learned long ago to recognize the high-pitched cries of newborns suffering from opioid withdrawal.
The two-week-old was among thousands of children separated from their parents and forced into state care by an opioid epidemic that fractured families in every corner of West Virginia, claiming 5,200 lives over two decades.
Time and again, state officials vowed to seek justice for the devastation and despair.
In 2001, at the dawn of the crisis, West Virginia became the first state to take OxyContin manufacturer Purdue Pharma to court. Officials would go on to file three more high-profile lawsuits against opioid distributors, demanding the companies pay to help offset the fallout of widespread addiction — a reported $8 billion annually in West Virginia alone.
Eighteen years later, as a federal judge in Ohio prepares to hear a historic series of opioid lawsuits waged by plaintiffs nationwide, West Virginia’s journey provides a case study in how legal battles against drug companies can fail to balance the scales, leaving behind more conflict than resolution in communities still reeling from the crisis.
In West Virginia, which has the highest opioid death rate in the country, officials settled the four cases for a total of $94 million.
In comparison, Oklahoma settled two opioid-related cases this year, one with Purdue and the other with Teva Pharmaceuticals, for a total of $355 million. In late August, a judge ordered Johnson & Johnson to pay the state $572 million. If the decision is upheld, Oklahoma stands to receive nearly $930 million.
West Virginia’s “94 million is barely a drop in the bucket given the size of the problem,” said Steve Roberts, president of the state’s Chamber of Commerce. “Not unlike a plague, everyone knows a family that has lost a loved one to addiction.”
Over the course of the state’s lawsuits, politicians accused their rivals of playing into the hands of drug companies. Newspapers raised questions about conflicts of interest. Lawmakers criticized the state’s former attorney general for spending settlement money on pet projects. Auditors found money was mismanaged. State officials fought over how to allocate it.
West Virginia spent $24 million of the settlements on legal fees to private lawyers and more than $20 million on drug treatment facilities. All the while, the state’s child welfare crisis mounted.
Nearly 6,900 children are in state care, double the number from a decade ago. Officials estimate that more than 80 percent have been impacted by the drug epidemic.
For more than a decade, foster homes and emergency shelters have been short of beds. Caseworkers with sleeping bags and baby formula have shuttled children to overnight stays in motels or state offices. Billboards have gone up along the highways, calling on commuters to open their homes.
In hard-hit Lincoln County, west of Charleston, caseworker Seana Harrison said she began to hunt for bed space in the mid-2000s and found herself driving children to foster homes that were hours away, their keepsakes in tow. One child took a stuffed bear, another a pillow wrapped in his father’s flannel shirt.
“I have times when I am so angry I can’t see straight,” said Harrison, who worked at a private social service agency. “There are never enough homes. There are never enough beds.”
In McDowell County, in the southernmost corner of West Virginia, social worker Tina Williams filled the trunk of her car with an emergency supply of diapers and baby formula.
As a caseworker for the state from 2001 to 2016, she once drove to the hospital to pick up a drug-exposed newborn with no place to go, took him to a local motel and rocked him through the night. She accompanied a third-grader to a cemetery to bury his mother, his father already dead from an opioid overdose.
“Where’s Mommy?” the boy had asked.
“Mommy’s asleep,” Williams had answered.
Then it was back inside her car, with blankets and snack packs.
In late September, a national child advocacy group and others filed a class-action lawsuit against West Virginia in federal court, arguing the child welfare system has for years “operated in a state of crisis.” No other state removes more children from their homes per capita than West Virginia, national data shows.
Bill Crouch, secretary of the Department of Health and Human Resources since 2017, said his agency has worked to hire caseworkers, increase their pay and create more emergency bed space.
“This administration and the West Virginia Legislature have invested more resources into the child welfare system than any other administration,” Crouch said in a statement after the lawsuit was filed. “We have been consistent and deliberate in our commitment to the safety and well-being of West Virginia’s children.”
Child welfare advocates say far more needs to be done.
“We’re in the midst of losing an entire generation,” said Rahul Gupta, former commissioner for the West Virginia Bureau for Public Health. “For other states . . . let’s not make the same mistakes that West Virginia did.”
A deal with Purdue
Eighteen years ago, the newly appointed director of the state’s Public Employees Insurance Agency pored over a stunning set of numbers: Prescriptions for the relatively new painkiller OxyContin were costing the state hundreds of thousands of dollars.
“What in the world is this?” Tom Susman had asked his staff. He notified state legislators. It wasn’t as if OxyContin was the cure for cancer.
As costs climbed at other state agencies and media accounts warned of a growing problem with addiction, the state’s then-attorney general, Darrell McGraw, decided to sue OxyContin manufacturer Purdue Pharma.
Purdue quickly mobilized, sending top executives to Charleston. McGraw, who recounted the meeting to The Washington Post, said they urged him to call off the planned lawsuit.
McGraw said he politely refused. Purdue declined to comment on the meeting.
Weeks later, the state filed suit in McDowell County, the heart of coal country.
At the time, the legal questions were novel and complex: Could a state hold a major drug company responsible for widespread addiction?
West Virginia’s lawyers were up against a powerhouse defense team. Purdue would bring in Eric H. Holder Jr., a former deputy U.S. attorney general who would go on to advise Barack Obama during the 2008 presidential campaign and ultimately lead Obama’s Justice Department.
“The doctors freely chose to prescribe OxyContin,” Holder told McDowell County Circuit Court Judge Booker T. Stephens in October 2004. “Abusers freely chose to abuse it.”
There would be no trial. One month later, Stephens called both sides into his chambers. For weeks, the lawyers had fought over a potential settlement. The state wanted Purdue to pay as much as $75 million. Purdue was offering $2 million, McGraw said.
McGraw said he was hearing from top state officials at the time, concerned that doctors, pharmacists and insurance companies opposed the litigation.
“As one messenger said to me, ‘They’re really unhappy in the office where I work,’” McGraw said. “I know from politics in West Virginia that anything anti-business is forbidden.”
The state’s lawyers had amassed a series of documents about Purdue’s marketing and sales practices. But in the judge’s chambers, as jurors were being seated for a trial, the state struck a deal.
Purdue would pay $10 million over four years and admit no wrongdoing. The drugmaker would also receive public acknowledgment of its “financial support . . . in partnership with the attorney general” when settlement money was given to various initiatives, court records show.
“I think we’ve done some good things here today on behalf of the state of West Virginia and Purdue Pharma,” Stephens told the lawyers.
At the time, $10 million was a record amount for an opioid liability lawsuit. McGraw said the case set a legal precedent but that Purdue’s payout was not “satisfactory.”
“We felt great pressure to settle it,” he said. “All the flow was against us statewide.”
Purdue declined to comment on the specifics of the West Virginia case, but said in a statement to The Post that it “vigorously denies” the allegations in lawsuits, calling them “misleading attacks.”
“We believe that no pharmaceutical manufacturer has done more to address the opioid addiction crisis than Purdue, and since 2000, we have pursued more than 60 different initiatives in collaboration with governments and law enforcement agencies on this difficult social issue,” the company said.
Three years after the settlement in West Virginia, Purdue and three of its executives pleaded guilty in federal court to fraudulently marketing OxyContin and agreed to pay more than $600 million.
The settlement in West Virginia did little to stop the flow of pain pills or provide help to thousands of struggling families.
By 2006, neonatologist Stefan Maxwell at the Charleston Area Medical Center was worried that half of the 30 beds in his NICU were occupied by newborns who had been exposed to opioids. Nurses raced between babies who would twitch, shake and refuse to eat. Their limbs stiffened, as if gripped by a seizure. The screams of the babies, an almost animalistic whine, would go on and on.
Some were already wards of the state, bound for the homes of strangers.
“There is no way we can send all these babies home to foster care,” Maxwell recalled telling his team. “We have to bring families back in the fold.”
As front-line workers scrambled, journalists, lawmakers and state officials began to question the state’s settlement with Purdue.
Of the $10 million, 33 percent, or $3.3 million, went to fees for lawyers at four outside firms brought on by McGraw to pursue the case. The balance went into a fund controlled by his office.
McGraw said he directed money to initiatives across the state, including a drug diversion and awareness program in McDowell County and a pharmacy school at the University of Charleston.
In a 2007 report, however, a West Virginia watchdog group accused McGraw of doling out settlement money to rally political support. “McGraw has created his own personal ‘slush fund’ to spend at his will,” West Virginia Citizens Against Lawsuit Abuse wrote.
State legislators proposed measures to force McGraw to put legal services out to bid and to turn over settlement money to the Legislature. The proposals did not pass.
“It shouldn’t be the attorney general’s office making that decision to open a pharmacy school,” then-State Sen. Vic Sprouse told the West Virginia Record, a legal journal owned by the U.S. Chamber Institute for Legal Reform.
Legislative auditors would also weigh in, finding that McGraw’s office had deposited the Purdue settlement and money from unrelated settlements into one account with “significant internal control weakness and noncompliance in areas of high risk.” Payments of nearly $800,000 lacked proper documentation and detail, the audit found.
McGraw said he was not familiar with the findings. “I can’t letter-and-verse go through every check to whomever got it,” he said. “We financed multiple drug detection and prevention programs . . . that’s what I remember.”
Martha Yeager Walker, secretary of the state’s Department of Health and Human Resources from 2005 to 2009, said the state should have prioritized West Virginia’s children.
“DHHR should be getting most of the settlement money,” she recently told The Post.
More suits are filed
In 2012, as the opioid crisis raged, West Virginia decided to bring two new lawsuits. This time, the targets were the giant opioid distributors Cardinal Health and AmerisourceBergen, along with a dozen smaller companies.
By then, about 4,200 children were in foster care, up from 3,400 four years earlier.
“We couldn’t find foster parents who could pass drug tests,” said Gupta, who was leading the health department in Charleston at the time. “We were often having to create emergency shelters . . . in hotels and even in our offices. We’re running out of people to take care of kids.”
Angela Davis, then a caseworker for the state, bounced toddlers on her lap while she worked the phone to find a spare bed. She needed foster parents with no felonies and no history of drug use. Time and again, she would strike out.
“It was like, ‘No, you’re out. No, you’re out. No, you’re out,’ ” Davis recalled.
She would eventually go to work at Lily’s Place, a nonprofit that cares for drug-exposed babies in Huntington, an hour west of Charleston. About 1 in 3 infants at the center are wards of the state, nursed to health in pink and yellow rooms with signs that say “Dream Big Little One.”
In Charleston, officials were focused on the lawsuits against the drug distributors.
McGraw, still the attorney general, had brought on Charleston lawyer Jim Cagle, as well as a firm founded by well-known attorney Rudy DiTrapano and his law partner, Joshua Barrett. The firm had helped pursue the state’s case against Purdue.
Cagle would direct the case against Cardinal Health because Barrett’s brother George had become Cardinal’s chief executive three years earlier.
The cases would be heard by Boone County Circuit Court Judge William Thompson, who for years had overseen child abuse and neglect hearings with absentee parents.
“They’ve disappeared into the winds,” he said more than once, studying the empty chairs in his wood-paneled courtroom.
In 2013, a year after the new lawsuits were filed, lobbyist and lawyer Patrick Morrisey became attorney general after defeating McGraw in a statewide race. The Charleston Gazette reported at the time that one of the lawyers for Cardinal Health had run Morrisey’s campaign transition team and that Morrisey’s wife had lobbied on behalf of Cardinal in Washington, D.C.
Morrisey’s office said the attorney general’s wife never worked on West Virginia-specific issues and that the Cardinal Health attorney described in the newspaper story was a private lawyer, not an in-house counsel. Cardinal Health declined to comment.
As the lawsuits advanced, the state in 2015 got a critical break. A regional supervisor with the Drug Enforcement Administration provided a detailed accounting of pill shipments in West Virginia, said Cagle, the attorney.
“We basically got a data dump from the DEA,” he said.
For the first time, the state learned the scale of the opioid shipments: Distributors had poured more than 780 million oxycodone and hydrocodone pills into West Virginia between 2007 and 2012.
“Mind-boggling,” the judge would later say.
‘We have not done enough’
In January 2017, four years after Morrisey took office, West Virginia announced a settlement with Cardinal Health and AmerisourceBergen. Like Purdue, the companies admitted no liability, with AmerisourceBergen paying $16 million and Cardinal Health $20 million. The smaller distributors agreed to pay a total of $11 million.
The settlements were announced days after reporter Eric Eyre at the Charleston Gazette-Mail, using drug shipment information and other records, described the flood of pain pills in stories that would win a Pulitzer Prize.
“We were pleased to have reached a resolution with the state of West Virginia in 2017 and have remained committed to the safe and appropriate delivery of controlled substances,” AmerisourceBergen wrote in a statement to The Post.
In a statement released after the settlement, Cardinal said, “While the company denies the state’s allegations, Cardinal Health recognizes that the epidemic of prescription drug abuse is a multifaceted problem driven by addiction and demand.”
McGraw, who had launched both cases when he was in office, said the settlements were inadequate. “Each one of those cases was worth $100 million,” he said.
Cagle disagreed, saying the cases were the “maiden voyage” in the series of lawsuits that would follow against opioid distributors. A jury trial and subsequent appeal would have been risky, the attorney said.
After the deals were struck, Cagle, under a protective court order requested by the drug companies, had to return or destroy all company documents obtained through the litigation. Cagle said he loaded about 50 boxes of records containing company sales data onto a pickup truck, took them to a client’s farm and built a bonfire.
“We just burned the whole damn thing,” he said.
In a statement, AmerisourceBergen said the request to return private documents was “hardly atypical” for a district court settlement and that the DEA already had access to much of the information.
For the second time, the law firms brought on by the state received one-third of the settlement money — $15.7 million of the $47 million payout. State lawmakers stepped in, directing much of the rest to treatment facilities.
Gupta, the former state health commissioner, pressed to direct money to foster care and to babies born exposed to opioids, fearing that a generation of children would suffer from the consequences of addiction. He laid out a response plan developed by experts at West Virginia University, Marshall University in Huntington and Johns Hopkins University.
Though the state provided some support, Gupta said he was disappointed that officials failed to focus more on the needs of children.
“The [settlement]money was inadequate and the manner in which the money was utilized was insufficient for the needs,” said Gupta, who would leave West Virginia to become chief medical and health officer for the March of Dimes. “We argue in courts that we need this money to solve the problem, but after the settlements, nobody looks back and says, ‘What happened to the money?’ ”
By then, Williams, the caseworker, had quit her state job. She had helped separate a distraught 3-year-old from his mother, who was abusing pain pills and other drugs. The boy was the youngest of nine, living with his pocket-size Thomas the Tank Engine toy in a house with no heat.
Williams would remember dozens of similar incidents.
“There was something in the back of my head, you know? ‘I did this. I did this,’ ” Williams said. “When I see these kids, I know they’re better off. But still.”
Williams went to work at one of 10 emergency shelters run by the nonprofit Children’s Home Society of West Virginia, which has provided tens of thousands of days of shelter care to displaced children.
In 2017, Crouch took the helm of the state Department of Health and Human Resources. He quickly tapped into his agency’s budget to hire about 50 more caseworkers, pay signing and retention bonuses and increase the $27,000-a-year starting salary. Lawmakers also provided $64 million in new money.