CHARLESTON – As the landmark opioid trial continues, lawyers brought in a former AmerisourceBergen’s sales executive to ask what he knew about more than 32 million prescription pain pills being shipped to Huntington and the rest of Cabell County over an eight-year span.
The City of Huntington and the Cabell County Commission sued three of the nation’s top pharmaceutical distribution companies – AmerisourceBergen, Cardinal Health and McKesson – in 2017 seeking compensation over claims the companies helped fuel the opioid epidemic by sending more than 81 million controlled substances to the county between 2006 and 2014.
On May 19, defense attorney Eric Kennedy called Michael Perry, a retired AmerisourceBergen (ABDC) sales executive of about 40 years. Perry did direct sales that included all pharmaceuticals and other-the-counter medications to pharmacies with territories varying in eastern Kentucky, West Virginia and Pennsylvania. Perry testified that he had roughly 65-80 customers and served Cabell County 90 percent of the time.
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Kennedy questioned Perry on the bonus system ABDC had in place for its sales representatives on top of their base salary, along with compensation packages offered for hitting specific goals and if ABDC pushed controlled substances for the bonus package. Perry said he had no knowledge if controlled substances were a large portion of the bonus package or if opioids were a significant portion of sales to individual pharmacies.
“Every pharmacy varies,” Perry said. “I can’t say if they would be a significant part or not.”
SafeScript Pharmacy, once located in Huntington prior to being shut down in 2012, again was referenced by the plaintiffs, who claimed 86 percent of the pharmacy’s sales were controlled substances. Perry said he was not privy to that information.
Perry agreed with questioning from Kennedy about completing company trainings in respect to regulatory affairs, noticing red flags and completing a “Form 590” questionnaire with customers.
A Form 590 was used on new and existing customer updates as background information on the pharmacy, why the company wants to switch wholesalers and the number of specific opioids each month and if over the ABDC’s noted number, the pharmacy would need to give reasoning.
Along with completing from 590s with customers, Perry agreed he was responsible for talking with owners, asking for an explanation of why the company was buying above a certain number, taking photos of the pharmacy and being aware of other possible red flags. Perry also said he was asked to do this when a company had a suspicious order but noted that he was not an investigator.
“I was never asked to investigate,” Perry said. “I was asked to retrieve information for the 590s and that was it.”
A slide, whose origin is unclear, was briefly shown before the defense objected on lack of foundation and unknown source. The document said, “sales executives were responsible for investigating their customers even after it was determined that the customer was a concern for diversion.”
Kennedy questioned Perry on if knowing SafeScript was the highest buyer of controlled substances from ABDC and were shipped 3.8 million dosages of oxycodone and hydrocodone to SafeScript between 2004 and 2012 would be surprising.
“I don’t know if it would surprise me or not," Perry said. "There’s a lot of things that come into play here. [I was] not privy to [that] information.”
Perry also said he did not recall saying that “I sold them a lot of oxycodone” in reference to SafeScript.
Kennedy then presented an ABDC investigation document from March 26, 2008, where Perry was asked about the number of pain medication being ordered by the pharmacy.
The documented response from Perry said that there were several pain clinics in the area that cause the pharmacy to always do “a lot of this style of medication” and that the pharmacy has “always done a lot with oxy and methadone and most likely always will.”
Later, a string of emails sent Sept. 9, 2009, between Eric Martin from ABDC’s regulatory and Perry were presented by Kennedy.
In an email from Martin to Perry, Martin asked him to compare SafeSript’s current purchase order to the Form 590 and determine if adjustments need to be made for the high ration of controlled substance to total sales ratio.
Perry responded to Martin’s email stating that the pharmacy had always purchased a high volume of controlled substances and that ABDC has made threshold adjustments in the past “due to this being the primary business” of the customer. Perry included a list of prescribers and the U.S. Drug Enforcement Administration numbers from SafeScript. Perry said the list was requested and he did not know the reasoning.
“When I send information to them, what they do with it does not come back to me in terms of why they’re doing the investigation or what they’re doing,” Perry said.
Kennedy then presented documentation where SafeScripts requested a threshold increase. The request was approved leaving the company at an 86 percent ratio, the maximum threshold.
Perry confirmed SafeScript’s owner being arrested and the pharmacy being raided by the DEA, something he reported to ABDC upon notification.
Kennedy also questioned Perry on different website tools of information ABDC provided the company’s sales team. He also asked Perry if he had knowledge that over 90 percent of his customers were missing or had outdated Form 590s in their files, knowledge that Perry denied knowing.
Perry said he believed ABDC had the same commitment to diversion control that the company did at selling.
Attorney Robert Nichols with AmerisourceBergen led the cross-examination.
Nichols questioned Perry on three different pharmacies in the Huntington and Cabell County area. The questioning was the same for all three pharmacies and included a brief description of the business; how often Perry visited the stores; if he ever saw needles, empty prescription bottles in or around parking lot, lines of cars or customers, people loitering or pharmacy owner and/or pharmacist diverting drugs; or any other red flags.
Perry testifies that he had never witnessed any of the questioned things at the pharmacies during his visits, which were sometimes often due to distance from his residence and unannounced.
Perry said he never felt ABDC was not doing their job. He believed the distributing company was a good company and never felt like ABDC or himself “dropped balls nor turned a blind eye.”
Perry made clear his dedication to Huntington and the impact that had on his career.
“I had a good base of customers in the Huntington area because that was my home,” Perry said. “A lot of my customers did business with AmerisourceBergen because of who I am, the relationship we had.
There was a brief re-direct from the attorney Paul Farrell Jr representing Cabell County and Perry that showed emotion from both men.
Farrell asked Perry if he had noticed a change in the community.
“I have, yes,” Perry said.
“We have an opioid epidemic,” Farrell said.
“I am well aware of that,” Perry said.
“It has affected us all,” Farrell said.
“Yeah,” Perry responded after a brief pause.
Attorney Michael J. Fuller, also representing Cabell County, then called Michael Mone', a former employee of Cardinal Health to the stand. But he quickly was dismissed by Faber and asked to return Thursday to continue questioning.
There was a brief, but adamant objection from McKesson attorney Paul Schmidt about the scheduling of witnesses during the fourth week of trial. Schmidt claimed the order would jumble the testimonies, making unclear.
Farrell argued the scheduling could be “tactical reason this order [for us] and tactical reasons other way around [for defense].”
Schmidt argued it was not a tactical reason but a clear reasoning due to witness’s knowledge and ability to identify specific pieces of information.
While Farrell returned argument that no matter the order, objections can be made concerning the schedule.
“If you can solve problem by calling Mr. McCann first, I think that’s the right thing to do,” Faber ruled.
Earlier in the day, the cross-examination of Steve Mays, vice president of Regulatory Affairs of ABDC continued with attorney Shannon E. McClure clarifying, in varied ways, that the DEA routinely visited ABDC, met with Mays and other employees and never questioned the company’s regulations of diversion control.
McClure continued with the same pattern of questioning to the point U.S. District Judge David Faber, who is overseeing the trial, asked if she had different reasoning, to which McClure said her intentions were to truly show the DEA’s involvement with ABDC.
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)