CHARLESTON – After a two-week break, plaintiff attorney Paul Farrell Jr. left no stone unturned as he presented the closing argument at the landmark federal opioid trial.
The City of Huntington and Cabell County filed suit against three pharmaceutical distribution companies – AmerisourceBergen, Cardinal Health and McKesson – in 2017 seeking to hold the companies accountable for their alleged part in the opioid epidemic by sending more than 540,000 opioids each month to independent and chain pharmacies – excluding hospitals and/or hospital pharmacies – located in Cabell County.
Both defendants and plaintiffs were granted six hours each for closing arguments. Cabell County and the City of Huntington started the arguments July 27, with two hours each, saving two hours for possible rebuttal.
Farrell
“Today is about business, tomorrow will be more personal,” said Farrell, representing Cabell County, as an opening.
Farrell compared this case to a puzzle with several pieces, including 40 in-person testimonies and 28 video testimonies.
“I wanted to get down to the very essence of what our case is about,” Farrell said.
Farrell displayed a simple fraction of “81,000,000/100,000 = opioid epidemic,” referring to the number of opioid pills distributed to the Huntington/Cabell County area over the number of residents in the area.
“It isn’t a substantial factor of an opioid epidemic, it will cause an opioid epidemic,” Farrell said. “There is no one that has testified in this court [who] will stand up and say this number, 81 million, is wrong. You have also taken notice of the population of Huntington/Cabell County that is undisputed.”
Farrell compared the defects in the defendant’s suspicious order monitoring systems to a hot water tank and its temperature regulator.
“What do you think your hot water tank is set to, there is some level that is acceptable,” Farrell said. “If it doesn’t trigger the higher temperature, you’re into some dangerously hot water … water got up to five times, six times, seven times. If the alarm went off, then somebody reset it and shipment continued the next month.”
Farrell said he would exhaust all the time using the “normal practice” of reviewing witnesses, instead asked to show two clips from depositions and asked eight questions which were pertinent to the “puzzle” plaintiffs have put together.
Timothy Hester, representing McKesson, motioned to remove the deposition clip of Nathan Hartle, former vice-president regulatory affairs and compliance at McKesson.
U.S. District Judge David Faber, overseeing the bench trial, noted the objection, but allowed the clip to be played.
Farrell said Hartle was questioned during his deposition on a “laundry list” of topics by both the plaintiffs and the defendants during three days of questioning.
Farrell asked if wholesale distributors should be held accountable for misconduct causing diversion.
“I believe distributors have a responsibility in preventing diversion,” Hartle said. “We’re part of a closed system, so we’re responsible for preventing diversion. I think we are responsible for something. I don’t know how you define societal costs.”
Another clip was shown from the deposition of Thomas Prevoznik, deputy assistant administrator at the Drug Enforcement Administration (DEA), where Farrell asked a series of five questions pertaining to the Controlled Substance Act (CSA) and the importance of diversion.
Farrell said this trial was no different than a jury trial.
“You [Faber] are both the finder of fact, as well as making legal decisions,” Farrell said. “We’ve slowly built a record and we bring the record to you. We believe the record has sufficient facts.”
Farrell presented several court rulings to help establish several definitions that had been argued during the case, such as a public nuisance and condition.
“We have alleged the condition in this case is the opioid epidemic, we have clearly defined it in the record as addiction, mortality and morbidity,” Farrell said. “What we’ve done, rather than bring cases on the standing of the individual, we’ve brought the case on behalf of the general public.”
Farrell’s list of questions pertained to the part diversion played in the opioid epidemic, the likelihood abatement is possible, the alleged harm and unreasonable misconduct.
“There is voluminous evidence that you can draw on,” Farrell said. “Elements that we tick off as we go down our list of evidence, this is the framework of the puzzle.”
Farrell had evidence broken down by witness testimony quoted and location of submitted evidence in terms of relevance to his argument.
Evidence presented by Farrell showed 10 percent of Huntington’s population is fighting active addiction.
He presented a quote from Hartle that said diversion comes with increased distribution.
“Using common sense and basic logic, you could assume the more pills that are out there, the more potential for diversion there would be,” Hartle said.
Farrell pointed out that historian David Courtwright testified without interruption or cross-examination.
“The historical record contains evidence from primary sources that a supply was a substantial factor in giving rise to prior opioid epidemics in the United States,” Courtwright testified.
Farrell presented an email from an AmerisourceBergen employee, in charge of the Huntington/Cabell County area in 2012, that has previously been shown but pointed to the email signature instead.
“SEE everything, OVERLOOK a great deal, and CORRECT very little. Pope John XXIII,” was written.
Farrell said it could not make a describe what took place with the defendants any better.
“We have done what we promised 38 trial days ago and there is only one opioid epidemic,” Farrell said. “We are asking for your help, we have the workers, we just need the funding.”
Anne Kearse, representing the City of Huntington, showed testimony pieces from witnesses working amid the epidemic and trial evidence that showed the increased exposure of prescription opioids were the driving force of widespread harm.
Kearse pointed out Jan Rader, Huntington Fire Chief, said “nobody is immune from it,” and that she has answered overdose calls for people from ages 12 to 88 years old.
Kearse broke down the testimonies and produced evidence into categories, such as child and family harm, transition to heroin, threat of harm, the abatement plan, etc.
She shared testimonies showing the partnerships and programs the community has put together to help fight the epidemic.
Kearse said the epidemic has had a ripple effect on the community effecting hundreds of people through the police, healthcare workers, family, first responders and employment/coworkers.
Bob Nicholas, representing AmerisourceBergen (ABDC), presented the first defense closing argument.
“We have nothing but respect for the people of Huntington and Cabell that we met during this trial who are attacking [this issue],” Nicholas said.
Nicholas’ argument was that the plaintiffs failed to show proof of misconduct.
He showcased witnesses from AmerisourceBergen, arguing that ABDC followed all regulations and protocols.
Nicholas said ABDC only distributed to licensed pharmacies, reported all shipments of prescription opioids to Cabell/Huntington and reported suspicious orders in Cabell County and Huntington.
He said opioids were a small part of the overall shipments made by ABDC and there is no evidence of diversion.
Nicholas said the plaintiffs wanted them to predict the future by presenting doctors who were in trouble later and that they were trying to “rewrite the future” because they “have nothing.”
ABDC worked on improving systems, years before being asked to do so and that it was clear when Joe Rannizzisi, who retired from the DEA as Deputy Assistant Administration Office of Diversion Control in 2015 took position, there was no longer clear guidance and he left companies to “figure it out,” Nicholas argued.
Nicholas said nothing was said about how many pills should have been sent.
“Distributors didn’t decide volume, doctors decided volume,” Nicholas said.
“This case could not be more important to AmerisourceBergen,” Nicholas said. “We hope that in this court room we have been able to convey how strongly we feel and believe that we are not liable, and we look forward to your decision.”
Cardinal Health and McKesson each will have two hours to present the company’s closing arguments July 28. The plaintiffs then will have the opportunity for a rebuttal with their preserved time.
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)
