CHARLESTON – The landmark federal trial against drug distributors McKesson, AmerisourceBergen and Cardinal Health over their role in the opioid epidemic began May 3 in Charleston.
During Monday's opening arguments for the bench trial at the federal courthouse, attorneys for the plaintiffs – the City of Huntington and the Cabell County Commission – told Senior U.S. District Judge David A. Faber they plan to put forth records and testimony showing the drug distributors knew their role in the crisis and could foresee the harm.
Meanwhile, the defendants said the plaintiffs couldn’t prove a direct causal link between distribution and the crisis.
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Huntington and Cabell County sued the drug distributors, sometimes referred to as “The Big Three,” in 2017, alleging the companies created a public nuisance by showering the region with addictive painkillers. They argue defendants are at least partly responsible for the opioid crisis after more than 80 million doses of the drugs were sent to the area in an eight-year period.
They say more than 1.1 billion prescription pain pills were shipped to West Virginia from 2006 to 2014 and that about 81 million of those (about 7.4 percent) were shipped to Cabell County. They also note about 1,100 opioid-related deaths and about 7,000 overdoses in Cabell County in the last 10 years.
Defendants argue they distributed the pills, including oxycodone and hydrocodone, to licensed pharmacies, which filled prescriptions issued by licensed doctors.
In opening arguments Monday, Paul Farrell Jr., a lawyer for Cabell County, said in one letter to the Drug Enforcement Administration seeking help monitoring drugs, Cardinal Health referenced “serious harms.”
“Notice the acknowledgment,” he said.
He also referenced a “crisis playbook” that was “circulated among the defendants.” He said they had predicted lawsuits and had looked at possible DEA suspension orders as “opportunity” to send a “message” about “misdirected DEA enforcement.”
He said after receiving notice of suspicious shipments , McKesson and AmerisourceBergen repeatedly told the DEA they’d “do better.”
Amid an increase in overdoses and media reports on the epidemic in 2012, their argument became, “We didn’t do anything wrong” and “You can’t make us,” he said.
“What changed?” he asked.
Both sides spoke of the need to show causation of a public nuisance. Farrell said his side would show causation with Congressional testimony by distributors and that of Joseph Rannazzisi, who formerly led the DEA’s Office of Diversion Control.
Annie Kouba, a lawyer for the City of Huntington, added that local experts, including police and first responders, would testify to their “boots on the ground” experience and knowledge of the harm inflicted on communities. Those experts spent thousands of hours in interactions with others affected by the drug crisis, she said.
“This case is about the unreasonable interference with public health, public safety and public peace of this community,” she said.
Defendants argued that plaintiffs couldn’t prove the link between prescription opioid shipments and heroin, illicit fentanyl and stimulant use. According to preliminary data last month released by the state Department of Health and Human Resources, fentanyl and methamphetamine were the primary drivers of overdose deaths in 2020.
Defendants also accused plaintiffs of trying to shift blame, and lawyers representing all three companies pointed to other entities they said played roles in the crisis.
Robert Nicholas, representing AmerisourceBergen, said plaintiffs are attempting to shift blame to distributors instead of the drug manufacturers who marketed the pills, the doctors who prescribed them, the pharmacies that dispensed them, and the DEA. He also argued that plaintiffs were blaming defendants for illegal drug diversion that took place after those drugs were no longer under the company’s control.
Enu Mainigi, a lawyer for Cardinal Health, also pointed to the role of the Joint Commission and its pain standards.
She said Huntington’s location, as well as economic challenges pre-dating the epidemic, also made it an easy target for out of state drug dealers.
Defendants also accused plaintiffs of assuming that drug shipments to the city and region were only consumed in that region.
Paul Schmidt, a lawyer for McKesson, said 76.8 percent of McKesson’s prescription painkiller shipments during that time went to the VA Medical Center. Defendants noted that hospitals serve wider regions.
Nicholas said that West Virginia was also vulnerable because of the prevalence of industries known for on-the-job injury, including lumber and coal mining, because it has an older population, and because of more arthritis, cancer and disability.
Nicholas made reference to an email about “pillbillies” circulated among AmersourceBergen employees. The Washington Post reported in May of last year that in 2011, distributors employees’ circulated an email including a parody of the theme song for “The Beverly Hillbillies,” describing how “pillbillies” drove south to Florida pill mills for their “Hillbilly Heroin.”
“Come and listen to a story about a man named Jed/ A poor mountaineer, barely kept his habit fed,” the song begins.
He said plaintiffs would show an "embarrassing email" from years ago.
“Do these few emails have any bearing on how seriously these people took their jobs?” he said. “No.”
He accused Cabell County and Huntington of failing to appropriately respond, then waiting decades to cast blame.The local governments presided over the epidemic they are suing about, he said, and chose to cut the police force.
"The city and county were there. What did they do?"
He accused the municipalities of seeking payment for a $2.6 billion “abatement plan” after failing to use their own funds for “opioid rehabilitation.”
Kouba had said, meanwhile, that Huntington Mayor Steve Williams had “took initiative,” noting the city started response teams to visit overdose victims and encourage them to seek treatment.
“They realized they could not arrest their way out of what they were dealing with,” she said.
Dr. Rahul Gupta, formerly the state health officer and commissioner of the Bureau of Public Health, will also testify, Kouba said. In 2018, at Gupta’s direction, DHHR released an analysis of overdose deaths in 2016.
Plaintiffs are seeking funds for a 15-year “abatement plan,” which Kouba said will include focus on prevention, treatment, recovery, as well as special populations.
Speaking to reporters following adjournment, Mayor Williams told reporters the day had brought to mind “all the individuals who've lost their family members and remembering those times when family members would come in and wanted to say 'Somebody needs to do something.'”
“All of that came welling up,” he said.
He said he couldn’t speak to allegations made during the trial.
“I'm just glad that we're in and in the same room as the defendants, and they have to answer our questions,” he said. “And then when they are answering, we're sitting right there. Every citizen of Huntington, West Virginia, (is) sitting there in that room, every citizen in Cabell County is sitting in that room, and it's affecting every citizen in the state of West Virginia. And these questions need to be answered. And finally we have our day in court.”
Faber previously denied multiple motions for summary judgement by the defendants.
Faber said the trial would resume Tuesday, although he paused to ask if parties needed to do anything else Monday afternoon. Neither side said they did.
In the federal case, Huntington is represented by Anne Kearse, Joseph Rice, Linda Singer and David Ackerman of Motley Rice and Rusty Webb of Webb Law Centre. Cabell County is represented by Paul Farrell Jr. of Farrell Law, Anthony Majestro of Powell & Majestro and Michael Woelfel of Woelfel & Woelfel.
AmerisourceBergen is represented by Gretchen Callas of Jackson Kelly and Robert Nicholas and Shannon McClure of Reed Smith. Cardinal Health is represented by Enu Mainigi, F. Lane Heard III and Ashley Hardin of Williams & Connolly. McKesson is represented by Mark Lynch, Christian Pistilli, Laura Wu and Megan Crowley of Covington & Burling.
U.S. District Court for the Southern District of West Virginia case numbers 3:17-cv-01362 (Huntington) and 3:17-cv-01665 (Cabell)
