CHARLESTON – During the last day of testimony in the landmark opioid trial, the defense’s argument shifted to Cabell County and the City of Huntington’s ability to effectively cover treatment programs through federal government grants and that the governments should be able to continue to do so.
The City of Huntington and Cabell County sued three of the nation’s largest pharmaceutical distribution companies – AmerisourceBergen, Cardinal Health and McKesson Corp. – in 2017 claiming the companies are largely responsible for fueling the current opioid epidemic that led the area to lead the nation in prescription opioid related deaths and at one-time being named the “epicenter of the opioid crisis.”
At the end of trial on July 9, defendants said six witnesses were left and expected to finish midweek. Before the lunch recess July12, the media was informed the two witnesses for the day would be the final ones called.
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Representing AmerisourceBergen, Shannon McClure, called Stephanie Colston to testify as an expert in systems, programs and services that provide care for people with Substance Use Disorder, their structures, finances and how to access them and the trends of overdoses.
While Colston raised several points during her examination, the cross-examination included her professional opinion.
During the cross-examination led by attorney Paul Farrell Jr., he asked a pattern of questions to clarify Colston’s belief on the opioid epidemic.
“I believe there is a broader substance use disorder in the United States and it shifts from drug to drug,” Colston said. “Many individuals, most individuals use more than one substance. So, pointing a finger at any one of those substances is what I feel is [incorrect].”
While she said opioids were the cause of the epidemic, they were not the only one.
It is Colston’s opinion that while opioids can be involved, psychostimulant drugs are what the crisis currently revolves around. She also said she believes it is a “series of crisis” in Huntington/Cabell County, not an epidemic.
Colston said while the programs have reduced the crisis, it has not eradicated it. She said a needs assessment would need to be made to determine gaps in the programming.
Colston said she is not sure more money is needed to fund recovery programs because of the government grants. She also stated that while she does not know the future, she has no reason to doubt that federal government funding for substance use disorder treatments will end any time soon.
Colston continuously said it was a drug crisis, but would not say there was specifically an opioid epidemic or that opioids fueled any singular crisis.
During the defense’s initial examination, The States Use of Grant Funding for Targeted Response to the Opioid Crisis by the U.S. Department of Health and Human Services office of the inspector general from March 2020 was presented.
“More than $300 million, almost 1/3 of the total nationwide grant funding for the state targeted response for the opioid crisis grant program (STR grant program) remained unspent after two years,” the report said.
West Virginia was the fourth highest of all states and territories with unspent money. From 2017 to 2018 the state spent 34.1% of their respected SRT grant, leaving 65.9% unspent.
Overseeing the bellwether bench trial, U.S. District Judge David Faber, asked what happens to the money if unspent.
“The state generally requests a no cost extension,” Colston said, with a justified reason as to why the extension was needed.
She said West Virginia applied and was approved for an extension.
Colston said West Virginia was one of the top three areas with the highest opioid use, providing them with an additional supplemental amount of $1 million.
“The purpose of the grant was to expand access to evidence-based treatment needs and reduce the opioid related overdose deaths,” Colston said. “The report actually expresses concern West Virginia has such a high number unspent, based on the high number of overdoses.”
Colston’s testimony mentioned the Affordable Care Act (ACA), Medicaid, Medicare and other grant programs that cover substance use disorder and opioid use disorder treatments.
The ACA expanded those eligible and added SUD as one of the 10 essential health benefits, Colston said.
In 2013, 5,837 West Virginians were covered under the ACA for OUD treatment, costing $7 million. With the expansion the number of West Virginians treated with OUD was 34.4K costing $85 million.
Colston said Medicare and Medicaid are federally funded and cover a variety of SUD treatment programs.
Colston said the prescription opioid dispensing rate, MME dosage and practitioners prescribing opioids have went down, which means there is not a prescription opioid use crisis in Cabell County – the opposite opinion of all previous experts. \
“There is a psychostimulant problem, specifically methamphetamine, in Cabell County,” Colston said. “I believe it is a substance use disorder crisis.”
Earlier in the day, Timothy Hester, representing McKesson, called Robert Rufus as an expert witness in public and forensic accounting to the stand. Rufus was asked to identify and quantify investments made by the plaintiffs for recovery programs and to quantify the pieces and price of the abatement plan presented by an earlier expert witness, Caleb Alexander.
Rufus said the total cost of Alexander’s 15 year abatement plan with the number presented by expert witness, George Barrett is $2.5 billion. \
Rufus argues that Barrett worked with an assumed 365 day program when a 2018 Treatment Episode Data Set (TEDS) said the average number of treatment days in the Cabell/Huntington area is 71. Reworking the numbers using TEDS numbers shows a decrease of $1.1 billion.
Hester argued that not all of the pieces of the abatement plan should be included as some are covered by other areas, such as federal funding and Department of Human and Health Resources.
Rufus said the estimated opioid use disorder (OUD) population Alexander used begins in 2021 with just a 4% adjustment. He said opioid overdose deaths are down 46.7% going from 182 in 2017 to 97 in 2019. Rufus also testified that suspected drug overdose deaths were down 52% with 1,831 in 2017 and 878 in 2019. Rufus did not include any numbers after the coronavirus lockdown.
The Centers for Disease Control and Prevention (CDC) reported over 81,000 drug overdose deaths across the United States between May 2019 and May 2020, “the highest number of overdose deaths ever recorded in a 12-month period.” The numbers continued to rise throughout the year.
Rufus said overall, the only “odd observation” he made during his review of depositions, reports, etc. was that the city budget improved overtime.
“I don’t think it has anything to do with their ability to pay at all,” Rufus said. “I think Mayor [Steve] Williams stated best, they’re not in the business of paying for healthcare. It’s not in the matter of pay, it’s in the matter of function.”
Colston was the final witness for the defense. All three defendants rested their case.
Closing arguments will commence July 27 and July 28, with each side being allowed six hours.
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)
