CHARLESTON -- A circuit judge asked attorneys to take a temporary break to reconsider their arguments in the state trial for drug companies accused of irresponsibly flooding West Virginia with pain pills and causing an epidemic.
During May 11 oral arguments, Mass Litigation Panel Judge Derek Swope also launched into a sometimes ramblingly speech laced with personal reminiscences and references to rock music and poetry.
Later in the day, an epidemiologist called by defense attorneys disputed the testimony of plaintiff witnesses that opioid suppliers had caused the epidemic.
The trial is being streamed live courtesy of Courtroom View Network.
Opioid suppliers Teva, Cephalon (now part of Teva) and Allergen are accused of ignoring the addictive danger of opioid pills so they could increase their profits and causing an epidemic. The charges include creating a public nuisance and violating the West Virginia Consumer Protection and Control Act.
In 2019, West Virginia Attorney General Patrick Morrisey filed lawsuits against the drug manufacturers in the Boone Circuit Court. The case was subsequently moved to the Kanawha Court and is being heard in a bench trial with no jury. Swope is to decide the verdict.
Plaintiff attorneys claim the epidemic started in the 1990s when the medical community, in the beginning encouraged by a few "opioid revisionist doctors" and later supported by drug manufacturers and distributors; abandoned what had been a former tighter policy of prescribing opioids mostly for terminal and cancer treatments. Instead they alleged, backers of more opioids began to recklessly prescribe and promote the drugs for less serious conditions, describing pain as a fifth vital sign (as in a pulse).
Pain alone is not a vital sign, the state’s attorneys claim.
Anti-drug diversion in-house programs required of the companies by the DEA were ineffective, the attorneys contended. They maintained that addicts got their start using prescription opioids and then graduated to heroin acquired on the street or more recently fentanyl, when the prescription opioids became too expensive or hard to get.
Defense attorneys argue the epidemic was caused by societal problems, illegal drug abuse including heroin and fentanyl, and not by manufacturing companies legally supplying doctors and hospitals with the pain pills they prescribed.
Janssen, the drug subsidiary of Johnson & Johnson, settled with the state on April 18, agreeing to pay $99 million although company officials denied any wrongdoing. An additional defendant Endo also settled with the state in March for $26 million.
A suspicious drug order includes one that is larger in quantity than normal or more frequent ordering than normal.
During the May 11 session, Swope asked attorneys to take break time to further consider their arguments and temporarily adjourned the court session.
“There are strengths to both cases and weaknesses,” Swope told attorneys. “You’re all the smartest lawyers I’ve had. You’ve given things to think about. But you all need to take a break and stop and think where you are.
"I drop the hammer,” Swope continued. “I’ve sent people to the penitentiary. I’ve granted summary judgment. I make decisions without fear of failure.”
Swope held aloft a multi-page file of lawyer briefs. He indicated that when he was dead, his considerations of such materials would be a legacy.
“I’m serious about what I put my name to. I’m a perfectionist,” Swope said. “I will give the most careful consideration to this, and it’s not about flattery folks. If you have to do it, I’ll do it. The judge is saying there is good news and bad. I’m not going to ask questions that are insulting to you, okay? Tomorrow is another day.”
Swope asked the courtroom how many knew of a poem by William Henley called Invictus. When no one responded, he recited a passage of the poem.
“It matters not how straight the gate, I am master of my fate,” Swope said.
In World War I, Swope said people had a chance to stop the war, but it went on for four more years and then was followed by World War II and six more desperate years of fighting.
Swope brought up the 1960s Jefferson Airplane song "White Rabbit" and the Smothers Brothers television show of the same period.
“How many people here were alive in 1967?” Swope asked.
“I was four years old,” one attorney responded.
“I was 14,” Swope said.
Swope then referred to a poem in the children’s book Alice in Wonderland and recited a passage.
“Time has come, the walrus said, to talk of many things, of shoes and ships and sealing wax, of cabbages and kings.”
Swope excused the attorneys to take break time and temporarily closed the hearing.
When the trial resumed, defense attorneys questioned the expert witness they called, Rob Lyerla, a Western Michigan University epidemiologist and associate director for science at the Substance Abuse and Mental Health Services Administration.
Lyerla disagreed with a plaintiff witness for the state Dr. Katheryn Keyes, who had earlier testified that overzealous marketing of opioids by the companies had led to the epidemic.
“Do you find Dr. Keyes’ opinions to be valid?”
“No,” Lyerla said.
Lyerla said figuring the rate of addiction (by Keyes) or overdose could be merely a “subjective” decision and was not just a simple estimation.
“Is potency (for drugs) changing?” he asked. “There are other factors that can put people at risk (other than marketing drugs). Substance abuse treatment, if a person has left treatment too soon, it can put them as risk for an opioid overdose. Or incarceration, if you’re coming out of incarceration, you’re at risk. Are there risk factors we’re not paying attention to?”
“Is fentanyl a more potent drug than we’ve seen before?” Lyerla was asked.
“That’s true,” he said.
“Non-medical use is misuse?”
“That’s my understanding.”
Under cross examination, state attorneys asked Lyerla about his contention that plaintiff opioid death statistics were inaccurate.
“You believe (plaintiff) opioid deaths information is unreliable?”
“I do,” Lyerla said.
“You agree there has been an increase in opioid deaths?”
“There has been an increase.”
“You don’t use the term ‘opioid epidemic?’”
“My preference is to be careful using it (epidemic),” Lyerla said. “It’s related to an event.”
“You don’t think there is an epidemic in New York, Florida or West Virginia, correct?”
“I agree that there are deaths related to opioids,” Lyerla said. “But epidemic is a short-cut and overused.”
“Other people think epidemic is appropriate to use.”
“I agree,” Lyerla said.
“You wouldn’t call it a crisis?”
“I’m careful how I use it (crisis),” Lyerla said.
The state attorney told Lyerla government agencies such as the Centers for Disease Control, the Food & Drug Administration and the Veterans Administration used the terms epidemic and crisis.
“Sure,” Lyerla agreed.
Lyerla said he had seen no evidence there had been a change in the population of people in West Virginia misusing opioids, and that on a chart such misuse would remain a flat line over a period of years.
Lyerla was shown a West Virginia government document that said communities in the state had suffered widespread harm because of the epidemic.
“I’m going to trust it is a press release of West Virginia without (specific) evidence,” Lyerla said.
