Trial Story Archives - West Virginia Public Broadcasting

Virginia Doctor Who Prescribed More Than 500k Doses Of Opioids Granted New Trial

Authorities said Joel Smithers headed a drug distribution ring that contributed to the opioid abuse crisis in Kentucky, Ohio, Tennessee, Virginia and West Virginia.

A Virginia doctor who was sentenced to 40 years in prison after prescribing more than half a million doses of highly addictive opioids in two years has been granted a new trial by a federal appeals court that found the instructions given to jurors at his trial misstated the law.

Joel Smithers was convicted in 2019 of more than 800 counts of illegally prescribing drugs.

During his trial, prosecutors said patients from five states drove hundreds of miles to see him to get prescriptions for oxycodone, fentanyl and other powerful painkillers. Authorities said Smithers headed a drug distribution ring that contributed to the opioid abuse crisis in Kentucky, Ohio, Tennessee, Virginia and West Virginia.

In a ruling issued Friday, a three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals vacated Smithers’ convictions and ordered a new trial.

Jurors at Smithers’ trial were instructed that in order to find Smithers guilty of illegally prescribing drugs, they must find that he did so “without a legitimate medical purpose or beyond the bounds of medical practice.”

But the appeals court found that that jury instruction was improper, citing a 2022 U.S. Supreme Court ruling that said a defendant must “knowingly or intentionally” act in an unauthorized manner to be guilty of that charge. Even though the jury convicted Smithers in 2019, his case was subject to the 2022 Supreme Court decision because his appeal was still pending when that ruling was issued.

Justice Roger Gregory, who wrote the 3-0 opinion for the 4th Circuit panel, cited Smithers’ testimony at his trial, when he said almost all of his patients had had significant car or workplace accidents and that he believed there was a legitimate medical purpose for each of the prescriptions he wrote. Gregory wrote that even though “a jury might very well not have believed Smithers’ testimony that he acted with a legitimate medical purpose,” the defense provided evidence that could have led to a finding of not guilty on each of the unlawful distribution charges against Smithers.

“In sum, because there was evidence upon which a jury could have reached a contrary finding, the instructional errors were not harmless,” Gregory wrote.

During Smithers’ trial, a receptionist testified that patients would wait up to 12 hours to see Smithers, who sometimes kept his office open past midnight. Smithers did not accept insurance and took in close to $700,000 in cash and credit card payments over two years, prosecutors said.

“We understand the 4th circuit decision following a recent change in the law and look forward to retrying the defendant, ” U.S. Attorney Christopher Kavanaugh said in a statement Monday.

Beau Brindley, an attorney for Smithers, said that since the 2022 Supreme Court decision, “only one thing decides a doctor’s guilt or innocence: his own subjective beliefs about his prescriptions.”

“Under this new legal standard, with the focus now solely on his intent, Dr. Smithers looks forward to being fully exonerated at trial,” Brindley said in a statement.

Explainer: Where Do US Opioid Trials, Settlements Stand?

Three trials are underway now, in Florida, West Virginia and Washington state. New legal settlements are being reached practically every week to provide governments money to fight the crisis and in some cases funds for medicines to reverse overdoses or to help with treatment.

The effort to hold drug companies, pharmacies and distributors accountable for their role in the opioid crisis has led to a whirlwind of legal activity around the U.S. that can be difficult keep tabs on.

In all, more than 3,000 lawsuits have been filed by state and local governments, Native American tribes, unions, hospitals and other entities in state and federal courts over the toll of opioids. Most allege the industry created a public nuisance in a crisis that has been linked to the deaths of 500,000 Americans over the past two decades.

Collectively, businesses already have faced settlements, judgements and civil and criminal penalties totaling more than $47 billion. The main entities targeted are the companies that manufactured and sold the pills; the businesses that distributed them; and the pharmacies that dispensed them.

Here’s an overview of the litigation and settlements involving the various companies:

Purdue Pharma

Purdue is the maker of OxyContin, an extended-release version of oxycodone that packed higher doses into pills. The drug, released in 1996, became a heavily marketed blockbuster drug — and is associated closely with the epidemic’s first wave.

Like other opioids, it was promoted not just for post-surgery and cancer pain but for chronic pain — an area where doctors previously were reluctant to prescribe such powerful drugs.

Faced with thousands of lawsuits, the company went into bankruptcy protection in 2019 to help reach a settlement.

A deal is now in place, but it’s not final.

It calls for members of the Sackler family who own the company to give up their stakes, making way for it to become a new entity — to be known as Knoa Pharma — with profits funding the fight against the opioid crisis. Additionally, family members are to pay $5.5 billion to $6 billion over time, with a portion of the money going to victims.

Earlier this year, three members of the family attended an online hearing in which parents described losing children to addictions that started with OxyContin, and people recovering from addictions described their journeys.

As part of the exchange, Sackler family members would get protection from lawsuits over opioids.

For the settlement to be finalized, a higher court must overturn a judge’s ruling that threw out an earlier version of the deal. A hearing on that is scheduled for April 29 before the U.S. 2nd Circuit Court of Appeals.

In the meantime, activists and some U.S. senators are asking the Justice Department to consider charges against family members.

Other Drugmakers

In a major court victory for drugmakers last year, a California judge ruled against some local governments in their case against pharmaceutical companies Johnson & Johnson, Endo International and Teva Pharmaceutical Industries.

Some of those drugmakers — Johnson & Johnson, Allergan and Teva — are now on trial in West Virginia.

But companies have largely been settling suits.

Mallinckrodt, which was a leading producer of generic oxycodone, also used bankruptcy court to reach a settlement, agreeing to a $1.6 billion nationwide deal in 2020.

Johnson & Johnson has agreed to a $5 billion nationwide settlement. It was announced alongside a separate settlement involving the three biggest drug wholesalers. The company’s Janssen subsidiary stopped selling its fentanyl patches and pain pills in the U.S. in 2020. J&J was also the first drugmaker to be held liable for the opioid crisis in a trial, though the Oklahoma Supreme Court later overturned the ruling.

Endo made the opioid Opana, which was eventually removed from the market. The company has been reaching individual settlements with states. Deals since last year with Florida, New York, Texas, West Virginia and some district attorneys in Tennessee have totaled well over $200 million.

Late last year, a New York jury found Teva partly responsible for the state’s opioid crisis through its marketing of the fentanyl drugs Actiq and Fentora. Most of the other companies the state and two counties sued settled before or during a trial last year. A separate trial is to be held to determine damages.

Since the New York trial, Teva has reached settlements with Texas, Florida and Rhode Island totaling more than $250 million. It will also provide drugs to reverse overdoses and treat addictions.

Allergan, now a subsidiary of AbbVie, has been settling suits involving the extended-release morphine pill Kadian. It reached one major settlement with New York last year. Since then, it has been part of the multi-company settlements in Florida and Rhode Island.

Executives from drugmaker Insys were convicted in 2019 of bribing doctors across the U.S. to prescribe their sublingual fentanyl spray Subsys. Company founder John Kapoor was sentenced to 5 1/2 years in federal prison.

The company also paid $225 million to resolve federal investigations into allegations that it paid kickbacks and used other illegal marketing tactics.

Distribution Companies

The three big national companies — AmerisourceBergen, Cardinal Health and McKesson — finalized their settlement, worth a total of $21 billion over 18 years, in February.

The deal, combined with Johnson & Johnson’s, is expected to be the single biggest settlement between companies in the drug industry and governments.

The total amounts include separate settlements covering all federally recognized Native American tribes.

With settlement money starting to flow to state and local governments, officials are figuring out how to prioritize it. The funds are arriving at a precarious time: The number of U.S. overdose deaths from all drugs topped 100,000 in a 12-month period for the first time last year. The majority of those deaths are from opioids — and particularly illicit synthetic versions including fentanyl.

Unlike the tobacco settlements of the 1990s, there are safeguards intended to steer most of the opioid settlement funds to addressing the crisis. Public health experts have ideas for how to do that, but the decisions are up to government officials.

The distribution companies also went to trial last year in West Virginia. A judge has not yet ruled.

Closing arguments in Washington state’s trial against the distributors are expected this week.

Pharmacies

Pharmacy chains have been sued less often than companies that make or distribute opioids. In one groundbreaking case, a federal jury in Ohio last year found CVS, Walgreens and Walmart recklessly distributed massive amounts of pain pills in Lake and Trumbull counties.

Late last month, CVS settled in Florida. That left Walgreens to go to trial Monday.

Consulting Company

Global consulting firm McKinsey & Company also reached deals last year with the states, Washington, D.C., and U.S. territories for advising businesses on how to sell more prescription opioids amid the overdose crisis. Those settlements totaled more than $600 million.

A group of U.S. senators is pushing for a federal investigation, saying there were conflicts when the company consulted on opioid-related issues both for companies and the U.S. Food and Drug Administration.

What More Can Be Done For Huntington's Opioid Crisis?

The City of Huntington and Cabell County are in federal court, taking prescription opioid distributors to task. If the city and county win their lawsuit, that could result in a payout of tens of millions of dollars. And in theory, that money could help fix the problem.

Dr. Lyn O’Connell works with the City of Huntington to tackle the substance use crisis through clinical services, research and program development.

She was also part of a team that produced a “resiliency plan” in 2020 for Huntington. The plan outlines a continuum of care her community could implement to stomp out the opioid crisis.

Health reporter June Leffler asked O’Connell how much a big settlement could loosen the grip opioids have on her community.

This interview was lightly edited for clarity.

Leffler: Do tell me what more we could see in a place like Huntington that already has so many different groups trying to tackle this issue?

O’Connell: I think what many folks imagine is that if an individual wants help, they just pick up the phone, or they just go to the doctor, or they walk in somewhere. It’s really not that easy.

There may be legal issues that need to be handled, there may be child or custodial issues that need to be handled. There may be wait lists that prevent them from doing any of those things. And so what we want to make sure is that we have a system that when someone says “I am ready and willing to enter treatment,” that there are no roadblocks. That transportation is not an issue, insurance is not an issue, that we’re coordinating across all of our systems to ensure that they have easy access. Because we know that when someone is ready and willing, that is the best time to intervene with that individual.

But we also know that it’s not just the individual, it’s the system, the family and the community. It’s a multi-factorial need. Every time that you quote solve one issue, you realize that there’s 10 more sitting behind it.

Leffler: What you think big settlement for the county and the city could accomplish? And what can any amount of money still not get done?

O’Connell: It’s such a challenge, because how do you value a single life lost? How do you place a value on those long-term negative impacts? I, for one, don’t know how to do that. And what can $1 do? Everything and nothing, simultaneously.

We have had grant funding that has allowed us to set up programs like PROACT, that make a concrete difference every day in the lives of people in our community. And things like Project Hope for Women and Children. But to some of the larger sort of systemic and philosophical issues that we’re facing, we will probably always be facing those.

If we take stigma, for example, if we don’t address people’s beliefs that other people aren’t as worth saving, we’re still going to have these fights and these issues, because we’ll have barriers. We’ll have providers who maybe don’t want to work with an individual with a substance use history, or employers that don’t want to hire someone with a substance use history, or judges that may not want to give someone a second chance, whether that’s remaining out of jail or prison or gaining greater custody and access to their children.

We can set up programs and improve access. But we also need to slowly work to educate that no one wakes up one day and hopes to enter a life of substance use disorder. Ideally, multi-millions of dollars being returned to this community could be used to comprehensively address both the concrete issues, but also start to address the philosophical needs as well.

Motion Seeks to Erase Ex-Massey CEO Blankenship's Conviction

Attorneys for former Massey Energy CEO Don Blankenship are seeking to erase his misdemeanor conviction related to the deadliest U.S. mine disaster in four decades. A former lead prosecutor called it a desperate act.

A motion filed Wednesday in U.S. District Court in Charleston claims federal prosecutors withheld information that would have assisted in Blankenship’s defense at his lengthy 2015 trial. It said the government produced reports and other information after the trial’s completion.

Blankenship, who has long maintained he didn’t get a fair trial, served one year in prison for a misdemeanor conviction related to the 2010 explosion that killed 29 men at the Upper Big Branch mine in southern West Virginia.

Blankenship assembled a new legal team for the latest court filing, which said evidence withheld by prosecutors until after trial “would have tipped the balance in Mr. Blankenship’s favor.”

The motion, which seeks an evidentiary hearing, was announced by Blankenship through his U.S. Senate campaign. He’s running as a Republican in the May 8 primary in West Virginia.

Former assistant U.S. attorney Steve Ruby, who was the lead prosecutor at the trial, said in an email to The Associated Press that the motion is “clearly a political Hail Mary. He’s three weeks from an election, and it sounds like he’s behind in the polls. If there were any merit to this whatsoever, he’d have filed it while he was still in prison instead of waiting almost until Election Day.”

Current U.S. Attorney Mike Stuart, who was nominated by President Donald Trump last year, said his office wants to “ensure justice is the ultimate result and any response (to the filing) will be through our actions with the court at the appropriate time.”

Blankenship was convicted of a misdemeanor charge of conspiring to willfully violate safety standards.

According to the motion, Mark Clemens, who oversaw Massey’s production, sales and budgeting, said in an interview previously undisclosed by prosecutors that “there was pressure at Massey to run coal, but not enough pressure to overlook safety.”

The motion said many of the documents involved interviews with people who testified at the trial. Among them was Christopher Blanchard, who ran the Massey subsidiary that oversaw Upper Big Branch.

Blanchard testified under an immunity agreement with the government but helped the defense during almost five days of cross-examination. He previously told Blankenship’s attorneys that he himself didn’t break any laws and denied being involved in a conspiracy with Blankenship to violate safety regulations.

The motion said most of the previously undisclosed emails were written by former FBI Special Agent James Lafferty, who testified about a variety of investigation topics, from Blankenship’s compensation to his frequent receipt of reports detailing Upper Big Branch’s violations.

The documents also cited former Massey safety expert William Ross, who gave a tough review of the company’s safety shortcomings. While talking about a 2009 meeting with Blankenship, Ross testified he told Blankenship that Massey couldn’t “afford to have a disaster.”

Four investigations found worn and broken cutting equipment created a spark that ignited accumulations of coal dust and methane gas at Upper Big Branch. Broken and clogged water sprayers then allowed what should have been a minor flare-up to become an inferno.

During the trial, prosecutors called Blankenship a bullish micromanager who meddled in the smallest details of Upper Big Branch. They said Massey’s safety programs were just a facade — never backed by more money to hire additional miners or take more time on safety tasks.

Blankenship’s attorneys rested their case without calling a single witness on his behalf.

Ex-Massey CEO Blankenship Claims Trial Documents Withheld

Convicted former Massey Energy CEO Don Blankenship claims documents that would have assisted his defense weren’t made available to his attorneys before his trial and he’s asking a federal court to vacate his misdemeanor conviction.

Blankenship made the claim in a news release through his U.S. Senate campaign to announce a planned motion to vacate the conviction. No motion was listed on a federal court website Tuesday night.

The statement claims that among the withheld information were federal Mine Safety And Health Administration documents. The campaign’s statement didn’t include the documents.

Blankenship served a one-year prison term on a misdemeanor conviction stemming from the 2010 explosion at the Upper Big Branch mine that killed 29 men in southern West Virginia. Blankenship has long maintained he didn’t get a fair trial.

Deanna Eder, a spokeswoman for the U.S. attorney’s office in Charleston, declined comment Tuesday night.

Jury Finds Man Guilty in Longtime Coal Exec's Killing

A jury on Friday convicted the accused trigger man in the 2016 fatal shooting of a longtime coal executive in West Virginia.

According to news outlets, 22-year-old Anthony Raheem Arriaga of Ohio was found guilty of first-degree murder, first-degree robbery and two counts of conspiracy in the death of Bennett “Ben” Hatfield.

Hatfield, who resigned in 2015 as Patriot Coal’s president and CEO, was visiting his wife’s gravesite in Maher when he was shot.

A first-degree murder conviction carries a life prison sentence in West Virginia. Jurors were still deliberating whether Arriaga should be eligible to receive parole in 15 years.

In opening statements, Mingo County Prosecutor Duke Jewell said Arriaga told police he killed Hatfield in May 2016 in a plan to steal his SUV and sell it for parts.

Arriaga’s attorney, Jane Moran, countered in court that authorities didn’t investigate if accused co-conspirator 20-year-old Brandon Fitzpatrick, of Kentucky, could have shot Hatfield.

The case was handed over to jurors on the fifth day of the trial. The jury returned with the conviction after about four and a half hours of deliberation.

Dennis Hatfield testified in court Tuesday about finding his brother’s body near a river next to the cemetery.

Arriaga had said he had been using drugs and had little sleep over several days.

In April, Arriaga pleaded guilty to murder and robbery charges in April, but later withdrew his plea. He said at trial that Fitzpatrick was the one who shot the gun.

Fitzpatrick heads to trial on a murder charge next month.