HUNTINGTON — For the first time in nearly three years, attorneys for the city of Huntington, Cabell County and the “Big Three” drug distribution companies will meet Monday in Charleston to assess where a multi-million dollar lawsuit lies and the possible scope of a trial over allegations that the drug companies created and fueled the drug epidemic locally.
While the two governments want a judge to be the decider in an 8-week trial staggered over the next year, the defendants — AmerisourceBergen Drug Corp., McKesson and Cardinal Health — refused to waive their right to a jury trial and said the length of the trial could be twice what the local governments want.
The lawsuits filed by Huntington and Cabell County argue that the distributors breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the state over the past several years — a duty the lawsuits claim companies have under the Controlled Substances Act of 1970.
From 2006 to 2014, 1.1 billion pain pills were supplied to West Virginia, with 261 million coming from Cardinal Heath, 172 million from McKesson and 169 million from AmerisourceBergen. As the number of pills sent to the state decreased over the years, those who developed drug dependency issues turned to illicit street drugs, like heroin.
The lawsuit seeks payment to help remedy the problems drug dependency has caused in the area.
Huntington and Cabell County were among the first to file lawsuits against drug companies, in 2017, but more than 2,500 others have since followed their lead. The last time the attorneys met in a Charleston courtroom was May 2017, before a multi-district litigation group was created and centered in Cleveland, Ohio, under one judge to better sort through all the cases.
With the Huntington and Cabell County cases sent back to West Virginia earlier this month, the sides are scheduled to meet at the federal courthouse in Charleston at 2:30 p.m. Monday for a conference in which they will update U.S. District Judge David A. Faber on where the case currently stands and where they believe its future is heading, including their idea of what a trial would look like.
In briefs written to the court this week, Huntington and Cabell County said they wish to stagger the introduction of evidence by reserving the first full week of every month for trial proceedings. They believe it would be ready for trial in March.
The first week would be dedicated to reviewing opioid data of where pills were shipped within the county and city. The second would focus on testimony from the U.S. Drug Enforcement Administration. The third, fourth and fifth months would call for witnesses regarding each of the Big Three’s involvement, with dedicated weeks for each individual defendant.
The sixth would be focused on the alleged “conspiracy” that the companies acted in concert with each other to cause harm. The seventh and eighth weeks would be devoted to the defendants’ alleged liability and the local impact they caused.
Cabell County Attorney Paul T. Farrell Jr. said that, while evidence exchange is essentially complete through week six, staggering the trial would allow a time frame to complete the rest of the discovery for the remaining two weeks. Farrell wrote more than 162 million pages of documents have been exchanged, 300 third-party subpoenas issued, 550 depositions taken, among other things for all the cases.
In contrast, the Big Three argued in their brief that the cases are not ready for trial and believe it would realistically take at least 18 months to prepare for trial. The defendants said that, while the plaintiffs had received a plethora of evidence, much of which came from two Ohio cases that settled last year, the defendants only recently started to obtain evidence from the plaintiffs.
Discovery in those Ohio cases took 18 months, they said, although the court had initially set a nine-month deadline.
The defendants also wrote that they are not willing to waive their rights to a jury trial. However, they agreed that the trial should last an estimated eight to 16 weeks. Beyond that, they said, it is too early to determine any trial details.
Farrell is the main attorney for Cabell County, while Charleston-based attorney Rusty Webb represents Huntington.
Farrell has said that, while he is pursuing a trial in the case, he will seek $500 million from the Big Three during settlement talks prior to the start of a trial. Any money received from the case will be put into a trust controlled by a local board, and a plan for where the money would be spent has been made, he said.
Last fall, the same three companies settled with Ohio’s Cuyahoga and Summit counties for $215 million in the final hour before the first trial was to begin.