CHARLESTON – At the landmark federal opioid trial, Cabell County Sherriff Chuck Zerkle testified being directly involved in Huntington, once deemed “epicenter of the opioid crisis,” has evolved.
During his testimony May 27, Zerkle said he wanted to make a difference and to help combat issues he believes are harming the community.
“One of the reasons I ran for sheriff was I felt I could make a difference in our community,” said Zerkle, who has been a Cabell County resident since 1985 working various positions in law enforcement and private industry.
Farrell
Cabell County and the City of Huntington sued the three largest pharmaceutical distribution companies – AmerisourceBergen, Cardinal Health and McKesson Corp. – in 2017 claiming the companies were largely responsible for the opioid crisis after the companies shipped more than 81 million hydrocodone and oxycodone pills to the county of just 100,000 residents between 2006 and 2014.
Under examination from attorney Tony Majestro, who is representing Cabell County, Zerkle said he believes the area once had a great workforce.
But now, “we have an addicted workforce,” Zerkle said, noting that employees are hard to find and more difficult to find when a drug test is required.
He said the notoriety of being an “epicenter” is bad publicity.
“Google Huntington, West Virginia and see what you get,” Zerkle said. “It ain’t good.”
Zerkle spoke of the increase in abandoned, “burnout, tore up” homes around the county.
In addition to the increase of abandoned homes, Zerkle said there has been an increase in recovery homes in the area with the county currently housing 65 recovery homes and 3,000 recovery beds.
“We’ve become a center for recovery," Zerkle said. "That is not always good."
Zerkle said he "had my finger on the pulse of it" during his police career, saying he was involved in various positions that worked with different aspects – raids, pre-breakup, administration etc.– of the drug crisis.
“When I was a young trooper, it was a rare occurrence when I saw a dead body,” Zerkle said. “In one day, my deputies encountered four deaths.”
Zerkle said the influx of pills was “astonishing” and did not see an enormous amount of overdoes at the time. He said he believed people knew where they were getting the pills and trusted them more. They also knew the dosage and drug, without question, which Zerkle believed helped keep the overdoses low.
“Started carrying Narcan not so much for the public but for our own protection,” Zerkle said. “In my opinion, 10 percent of drug use at the time, I’d say during the height of this thing, 60-70 percent.”
As a result of the drug epidemic, Zerkle said Cabell County has faced financial trouble.
“I would envision we could do more if we had more,” Zerkle said. “I will apply for a grant for anything, and I do.”
With the COVID-19 pandemic, Zerkle said the sheriff’s office saw a spike in overdoses.
“People were staying home and not out as much," Zerkle said. “I guess they were bored.”
Cabell County has the highest mental hygiene rate in the state with an estimated 700 services a year Zerkle said. He said more than 50 percent of those are addiction related.
“When everyone’s tired of dealing, they do mental hygiene.” Zerkle said.
Zerkle said the mental hygiene process goes from being picked up, taken for an evaluation and addition check, taken to the hospital for medical clearance, speak with a mental hygiene commissioner and then placement in a facility.
“It’s long from being over," Zerkle said. "I fear for what comes for my grandchildren and the next generation. This is not about me. I’m an old guy. I’m done.
"What are we going to do with the next generations we see in school whose parents have died from this? Who is going to raise them?”
Majestro asked Zerkle about any recent experience he had related to drug use.
Zerkle said he recently was leaving a grocery store when he saw three of his deputies together. He said he pulled over when he saw a woman lying beside the car and two small children – ages 4 and 8 – nearby. Zerkle said the woman’s nail beds were gone, she was blue and dying. Zerkle was informed by his deputy the 8-year-old ran into traffic screaming for help.
Zerkle said his team generally leaves Narcan administration to the emergency squad, but they tried to move the children and bagged the woman. The eight-year-old asked Zerkle’s female friend if she was going to be her “new mommy.” Zerkle testified the woman suddenly gasped for breath, sat up and asked what was going on. Zerkle replied and asked her the same question where she said she was just running around. Zerkle said she was unaware she had overdosed. Her daughter informed her she went to a certain house and passed out soon after.
AmerisourceBergen and McKesson presented a cross-examination, and Cardinal Health declined.
The question patterns reiterated crime reports and which drugs Zerkle has seen during his tenure, drugs raids in Huntington that involved Detroit residents and Cabell County’s “rainy day fund” surplus it now have for the first time.
“We’ve got a lot of rainy days ahead of us,” Zerkle said.
Questions were raised about the sheriff department’s data collected on specific drug use and drug related crimes, something Zerkle said he was sure existed but could not say he had viewed the information recently or that he knew how to access data collections.
Plaintiffs called Lyn O’Connell, associate director of addiction sciences at Marshall Health.
O’Connell was asked about Huntington’s Road to Recovery program, something she said was created because Huntington wanted to be able to show what was being done and that the area was working to make things better.
O’Connell, originally from Virginia, said when she started her position the drug use was “almost extensively opioids.”
Plaintiffs then questioned O’Connell on Cabell Country programs created to aid in substance use disorder and long-term recovery. O’Connell was asked to explain several programs from prevention, harm reduction, expecting and new mothers, children and reversing the cycle.
O’Connell will continue her testimony Friday.
Earlier in the day, Attorney Paul Schmidt with McKesson continued cross-examining James Rafalski, a potential expert witness, on his interpretation and investigation of presented data from McKesson, Cardinal Health and AmerisourceBergen.
Rafalski is a former Drug Enforcement Administration official who would visit and investigate suspicious registrants for diversion. He would collect files and records to put together in a final report to then send to the chief counsel for final review and decision.
Schmidt argued that Rafalski did not use consistent methodologies on his data review and that key information was missing that Rafalski failed to look at further information that would give a more accurate result.
“I think there’s some conflicting information in the material I reviewed, “ Rafalski said.
Schmidt pulled several video clips from Rafalski’s 2020 deposition, comparing them to current testimony, arguing he continuously had conflicting answers.
A line of questions was then presented to Rafalski’s knowledge on average oxycodone per pharmacy in the United States, West Virginia and Cabell County.
Radalski did not know numbers for several of the questions and answered others with, “it’s in my report on one of McCann’s data slides that I referenced.”
Schmidt asked Rafalski about further investigation related to Rite Aid practice and specific documents and the time period Raflaski believed files should be kept after having no records of calls or all forms of communication between pharmacies and drug distributing companies.
“I could understand many years back, I think as the industry progressed, especially 2005, changes I would expect to see,” Rafalski said.
Rafalski said he felt newer documents should always be retained and believed a part of regulation is always keeping history to look back upon for improvement.
Schmidt concluded the cross-examination by presenting a West Virginia Board of Pharmacy Outpatient Pharmacy Inspection Report, after questioning Rafalski’s knowledge on the board doing licenses reviews and inspections every two years – which he did not.
“You do not know if Rite Aid caused the opioid crisis in Cabell County, do you,” Schmidt said.
“I do not know, I have no direct knowledge,” Rafalski said. He said he knew there were suspicions.
Cardinal Health and AmerisourceBergen stated they had a cross-examination prepared, but felt it was not needed after Schmidt’s.
Attorney Paul Farrell Jr., also representing Cabell County, led a brief redirect arguing documents presented to Rafalski with highlights to read to the record were misleading by defendants not reading full paragraph or background of the document.
Schmidt questioned about distributors requesting ARCOS information from DEA.
“Always a constant question that distributors wanted to see full ARCOS statement,” Rafalski said.
Farrell presented an opinion from Madel vs. U.S. DOJ in the 8th circuit be placed on the record.
Immediate objection was made on geographic scope – case was from Georgia they believed.
The document was a FOIA request to DEA for Automation of Reports and Consolidated Orders System (ARCOS) data from all three defendants with a section on the DEA’s position to the availability of ARCOS.
All three defendants objected with out of reference scope, claims Farrell was testifying and the FOIA request was in contrast with the witness’ earlier testimony.
Farrell counterargued that information had been misrepresented and the defendants were afraid of “competitor poaching” in terms of releasing ARCOS information. He said the defendants continually are trying to push blame on DEA who is not represented in the courtroom, which is his reasoning for the court document.
Attorney Enu Mainigi, representing Cardinal, said the presented case had nothing to do with witness findings.
“The DEA is going to be present in the courtroom,” Mainigi said. “There will be DEA testimony.”
Plaintiffs plan to use depositions from DEA as well as testimony from Joseph T. Rannazzisi, who ran the DEA’s regulation division.
U.S. District Judge, David Faber, sustained the objection.
After Rafalski was dismissed, Schmidt asked to address the court, in which he argued much of Rafalski’s testimony was opinion and there was no reason given on why the companies were deficient and had no standard for the real world.
Schmidt argued Rafalski did not have all the information to make the decisions he did, he was unsettled on a specific methodology, had to correct errors, did not return specific results and that he admitted a potential 400 percent error rate.
Under general acceptance factor, Schmidt argued Rafalski was not reliable and did not fit an expert witness.
Cardinal Health and AmerisourceBergen joined Schmidt’s claims.
“This is not a new fight, this is an old fight on this issue,” Farrell said.
Farrell argued there is no other trial of this substance and it is a big issue saying the expert witness is supposed to assist the trier on “whether or not there is a public nuisance with unreasonable interference.”
Farrell said Rafalski’s job is to say, “this is what I did with the DEA and instead of reporting to the chief, I’m reporting to you,” like he would have done with an investigation.
“To be frank with you, Mr. Farrell, I was shocked when he came up with that 90 percent number,” Faber said.
Farrell said he was not suggesting all the data should have been blocked or reported but it was like “checking the fire alarm.”
“[Testimony] is crucially important to the case,” Faber said. “I’m not going to rule until after briefs.”
Attorney David Ackerman, representing the City of Huntington, made a “request for judicial notice with the court.” He asked to eliminate the guilty pleas of David Gustin, former director of regulatory affairs with McKesson who plead guilty to “knowingly failing to file suspicious order reports” last year.
Ackerman claimed earlier questioning of Michael Oriente from defendants opened the door the door for the motion.
The defense argued “issues of judicial notice cannot be used to overcome a hearsay issue” and that Gustin plead guilty to a single Kentucky pharmacy.
Faber kept his original ruling on the subject.
Schmidt started the cross-examination May 26 of Rafalski, probing him on the answers to a line of questions asked by Farrell regarding his data analysis and opinion formed.
Schmidt spent the afternoon trying to impeach Rafalski as an expert witness. At one point, the McKesson attorney told Rafalski he just needed straight answers because what he wanted was to have his testimony thrown out.
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)
