CHARLESTON – Tension remained high in the courtroom of the landmark federal opioid trial as plaintiffs and defendants argued expert witness reports and testimonies.
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.
On June 15, attorney Linda Singer, representing the City of Huntington called Lacey Keller, co-owner and founder MK Analytics, Inc. as an expert witness.
Singer
Keller’s expertise is data and analytics mining for investigations and prosecution. She was responsible for studying the data and trends of opioids and opioid related deaths to help implement a program to equip police officers with Naloxone.
Keller said she was asked to identify prescribing activity of prescribers in Cabell County.
Keller said she looked for outliers – “something outside of the norm, something well-above average, may also be below average” – throughout the data she was presented.
“The top 1 percent, around five to nine, in a given year prescribed over 40 percent of those dosage units,” Keller said. “Those prescribers prescribed over 80 million dosage units.”
Keller looked at data for Cabell County, West Virginia and nationally between 1997 and 2017 to find the top prescribers.
Keller said her findings showed there are 1.782 million prescribers nationally. 10,639 of those prescribers are in West Virginia and 1,122 are in Cabell County.
It showed three prescribers in Cabell County were top prescribers – Dr. Deleno Webb was 278th, top .02 percent; Dr. Phillip Fisher was 633rd, top .03 percent; Dr. Gregory Chaney was 9440th; top .5 percent – in the nation.
Keller’s analysis showed 24 high prescribers in Cabell County between 1997-2017 through Xponent data.
Webb was the leading OxyContin prescriber in the state and top prescriber in the Drug Emporium and Exponent data. He was the seventh highest prescriber in the state. He prescribed 14.3 million dosage units. Fisher, who ended his practice in 2012, prescribed 10 million dosage units within that time.
There were several other prescribers in Cabell County with more than 10 million dosage unit prescriptions. The document was not fully visible to the media, but Dr. Anita Dawson, Dr. Dawn McFarland and Dr. David Caraway were mentioned.
Keller said her opinion was that all three defendants were “able to identify outlier prescribers.”
Keller said she used prescribing and dispensing data to form her opinion because “those data sets were pertinent to describing the prescribing activity in the county.”
One document used that Keller said she found notable, was on Medicine Shoppe. The document showed Webb prescribed 313 of the 582 of the oxycodone prescriptions. The next prescriber had 119 of those prescriptions.
Webb’s “prescription increased overtime,” Keller said. Between 1998 to 2016 he was the top five of Cabell County. Webb had 4x the number of opioid prescriptions by average in pain management. By 2011, Webb had prescribed 1.1 million dosage units. Over 30 percent of pills prescribed were for oxycodone 30mg and 70.6 percent of prescription dosage units written by Webb and filled by Drug Emporium were opioids.
“Even to the naked eye, Dr. Webb is a [visible] outlier,” Keller said.
Keller testified that she saw similar dispensing data from all three defendants and concluded, based on relied on documents, that the companies had purchased or talked of purchasing prescribing data.
Keller said the data she used was available to the three distribution companies.
Keller said several governments use the same Xponent data that was used in her analysis, including Human and Health Resources, Food and Drug Administration, Drug Enforcement Agency and Centers for Diseases and Control Prevention.
Several documents presented for Keller’s testimony that the defendants objected the use, on the claim they were not informed of the possible use. Several questions on Keller’s concluded opinion also had a running objection due to scope, foundation and relevance.
Earlier in the day, cross examination of expert witness, Katherine Keyes, a substance abuse epidemiologist continued by attorney Timothy Hester, representing McKesson.
Hester opened the court by bringing perspective to the lengthy cross-examination the prior day citing with a short direct on an expert witness with specific methodologies and research that defense “need to explain and drill into the methodology” and were “surprised by responses of impeachment” and non-direct answers.
U.S. District Judge David Faber expressed his concerns on the track of the trial, noting the plaintiffs needed time to plead their case and asked the attorneys to be more responsible with time.
“Hopefully this will be a sprint and not a distance run,” Faber said.
The morning was filled with objections and arguments between the plaintiffs and defendants, and tension with the witness at her clarifying points.
Hester presented articles, pointing to key sentences/passages and asked about the end conclusion of the articles on causation connecting prescription opioid use to heroin use. Keyes asked for further clarification by adding the following sentence to clarify the context of the paper.
Another article was presented that stated opioids are not necessary or sufficient to cause heroin use, in which Keyes compared to smoking and lung cancer – it is not necessary but does increase the chance.
Cardinal Health and AmerisourceBergen declined cross-examination.
During the redirect, Paul Farrell Jr. presented articles Hester previously questioned Keyes on and made known they were fragmented sentences and had key points to context missing, something the witness tried to explain during her testimony at the time.
Farrell tried to question Keyes on her opinions related to the Cabell County and the City of Huntington opioid epidemic and if Keyes believed the increased number of opioids shipped into the county by the distribution companies. Defendants argued the witness did not include the opinions in her report and it was out of scope for her to give her opinion.
Attorney Ashley Hardin, representing Cardinal Health, led a recross-examination. Hardin presented exhibits that the plaintiffs objected to because they were not previously presented to the plaintiffs. Hardin argued it was proper use for cross-examination and impeachment.
Hardin questioned Keyes on the article mentioning wholesale distributors or their failure to follow DEA obligations, allowing Keyes to read the article to which she was unfamiliar. Keyes opinions did not directly answer Hardin’s questions, leading Faber to ask her to answer yes or no.
A redirect to Hardin’s questions was attempted by Farrell with objection of relevance and Faber sustained, ending Keyes testimony.
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)
