Recently, West Virginia Attorney General Patrick Morrisey announced that his office reached a $68 million settlement with Kroger, resolving allegations that the company contributed to the oversupply of opioids in the state and failed to maintain effective controls. Kroger was the last remaining defendant in a lawsuit against multiple pharmacies, including Walgreens, Walmart, CVS, and RiteAid. Each of the other defendants previously reached settlements, for $83 million, $65 million, $82.5 million, and up to $30 million, respectively.
The lawsuits filed by West Virginia allege that the pharmacies contributed to the opioid crisis and caused “significant losses through their past and ongoing medical treatment costs, including for minors born addicted to opioids, rehabilitation costs, naloxone costs, medical examiner expenses, self-funded state insurance costs and other forms of losses to address opioid-related afflictions and loss of lives.”
Under the settlement agreement, Kroger will pay $34 million immediately, followed by $12 million on June 30, 2024, $12 million on June 30, 2025, and the balance over the next seven years to reach the $68 million total. The settlement also includes a 2.94% Most Favored Nation protection, which means West Virginia will not be prejudiced by any future national settlement.
The money from the Kroger settlement – and the others – will be distributed under the terms of the West Virginia First Memorandum of Understanding. The Memorandum of Understanding allows for the creation of the West Virginia First Foundation, which will be responsible for distributing the funds for abatement purposes. The Foundation is expected to receive the majority of the money (72.%) while 24.5% goes to local governments and 3% will be held in escrow by the state of West Virginia.
“Let this be a warning to others: We fight hard for those affected the most by the opioid epidemic and will stop at nothing in getting justice for them,” Morrisey said during his press conference announcing the settlement. Morrisey also foreshadowed future litigation, saying, “While there will likely be some litigation into the future, I can say that the current cases for West Virginia right now are complete.”
Morrisey also called out the danger of fentanyl, noting that “the level of fentanyl coming into our state is off the charts” and that right now fentanyl is the leading cause of drug deaths in West Virginia and the state “needs to do more today to stop the deaths.”
A spokesperson for Kroger said in a statement that “while we continue to believe that the allegations made against Kroger in this and other opioid lawsuits are without merit, we have decided that a settlement is the best path forward to resolve this litigation.”
The Larger Picture
The Kroger settlement puts West Virginia over $1 billion in amounts recovered through opioid litigation – more than any other state per capita. It also adds to the more than $50 billion in settlements that have been reached between drug manufacturers, distribution companies, pharmacies, other companies and various state and local governments over the past four years.