Public health officials, community leaders and first responders in Huntington and Cabell County are prepared in almost every way to address the substance abuse epidemic in their communities — they’re just missing the money they need to do it.
They’re looking to Senior U.S. District Judge David Faber to help them by ruling that three drug distributors — AmerisourceBergen Drug Corp., McKesson and Cardinal Health — played a substantial role in fueling the opioid epidemic and should be made to pay to help alleviate the suffering they say the distributors caused.
On Tuesday, Faber began hearing closing arguments in the landmark case in the Robert C. Byrd U.S. Courthouse in Charleston.
Bob Nicholas, representing AmerisourceBergen, said the local governments effectively were asking Faber to issue them a blank check, two weeks after Dr. Caleb Alexander, a professor at the Johns Hopkins Bloomberg School of Public Health, testified that it would take $2.6 billion to enact a plan to abate the epidemic in the city and county.
Paul Farrell Jr. and Anne McGinness Kearse, representing the plaintiffs, were the first to give closing arguments Tuesday morning, with Nicholas following in the afternoon. Tuesday was the first of what is scheduled to be two days of arguments to wrap up the bench trial that began in May.
Attorneys presented 38 days worth of evidence in the case since the trial began on May 3.
Attorneys for McKesson and Cardinal Health are scheduled to give their closing arguments Wednesday morning. Farrell and Kearse will give their rebuttal closing arguments in the afternoon. Since the case is a bench trial, Faber — not a jury — will decide the outcome.
Representing the Cabell County Commission, Farrell told Faber that local officials, first responders, volunteers and other leaders know there’s a substance abuse problem caused, in large part, by the distribution of opioids in the area. Those same people testified that they already are combating the problem using some local government funding, but they are largely relying on grants and donations. That formula, they said, isn’t sustainable long-term to make an impact on the opioid crisis and recover their communities.
“There is an opioid epidemic, and what we’re asking for is your help,” Farrell said. “We have the workers; we need the funding.”
In his first set of closing remarks, Farrell told Faber the evidence presented during the trial showed that, even as the distributors shipped more pills to Huntington and Cabell County and the U.S. Drug Enforcement Administration intervened, company executives and safety controllers failed to act in accordance with the U.S. Controlled Substances Act to protect the communities from the risk of addiction that the distributors knew was inherent with opioids.
Farrell framed his closing remarks around an eight-question jury sheet, asking the judge to answer ‘yes’ or ‘no’ to questions about whether the distributors were responsible for opioids delivered to Huntington and whether that was a substantial factor in the epidemic.
“The primary effect of their conduct is to create black markets for an increase in illegal demand and consumption,” Farrell said. “We think you can answer all these questions in the affirmative.”
In their initial lawsuits, the county commission and the city claimed that, between 2006 and 2014, the companies distributed more than 81 million pills in Huntington and Cabell County, which had a population of between 90,000 and 100,000 people during that time. Data presented during the trial indicated that as many as 127.9 million opiate doses were distributed in the area during those years.
While the drug distributors ignored or overlooked red flags, Huntington began to suffer, Farrell said.
A sharp decrease in the supply of opioids in 2011 caused people who were already experiencing substance abuse disorder to seek out more accessible drugs, Farrell said. Opioids became a gateway to illegal drugs, often heroin, he said.
In turn, it was up to local officials to address the issue. They began to monitor drug overdoses, and more closely track the distribution of drugs and the health issues related to their misuse, Farrell said.
He and Kearse recalled testimony from Huntington Mayor Steve Williams, former Huntington police chief Skip Holbrook, Huntington Fire Chief Jan Rader and Dr. Rahul Gupta, formerly the commissioner of the West Virginia Bureau of Public Health.
Holbrook now is the police chief in Columbia, South Carolina, and Gupta is President Joe Biden’s nominee to head the U.S. Office of Drug Control Policy.
Each of those officials shared their experiences in responding to the epidemic and the ripple effects that followed, from the mental and physical toll on first responders and the spread of diseases related to substance abuse, to the strain on the state’s foster care system and an increase in the number of babies born addicted to drugs, a condition medically known as neo-natal abstinence syndrome.
Witnesses testified that, while community leaders have established long-term recovery programs and other community and public health support systems, those systems are hanging on by a thread because of the limited resources available.
“There was abundant evidence, your honor, throughout the trial that, as the pills came and pills were seen by the community, there also began to be an intertwining of heroin use — a reasonably foreseeable event to the defense as a matter of law, history, science, basic common sense,” Kearse said. “As the breaches, the diversions, were occurring in a closed system, the impact was bubbling on the surface of these communities.”
In response to the local governments’ claims, Nicholas said the companies distributed drugs only as pharmacies ordered them and doctors prescribed them.
Nicholas said attorneys for the County Commission and the city proved only that drug distributors had shipped a large volume of pills to the area and that there was a substance abuse epidemic in Huntington and Cabell County.
The plaintiffs didn’t provide any evidence that the companies engaged in wrongful conduct or had fault in their reporting systems, Nicholas said. He also argued that the plaintiffs did not prove that the volume of pills caused harm to the community.
Throughout the trial, attorneys for the drug distributors have argued that West Virginia’s physical labor-intensive economy and history of poor health led to the increase in demand for opioid medication. They argued that doctors and state agencies were most responsible for opioid distribution, saying the doctors prescribed the pills, local pharmacies filled the prescriptions and state agencies failed to intervene.
“The only thing to be said about the distributors is that they did not second-guess these medical judgments,” Nicholas said.
Drug distributors simply sent pills to pharmacies as they were ordered, he told Faber.
“It’s not as if the distributors backed [up] a fleet of trucks and ... dumped pills in the street,” Nicholas said. “They shipped medicine to licensed pharmacies, pursuant to lawful prescriptions of an FDA-approved medication written by licensed doctors.”
Nicholas also said DEA intervention in the company’s distribution dealt with internet-based pharmacies and, in one instance, a distribution center in Orlando, Florida, that did not serve West Virginia.
He also said drug distributors are not in the business of stopping bulk shipments of pills when orders are flagged as being suspicious.
“If they were to cut off supply of a random subset ... of patients with opioid prescriptions that were written by their well-intentioned doctors, patients would not get their medicine,” Nicholas said. “Hospice patients, cancer patients, patients with debilitating pain — those are examples of people who may not get their medicine, who wouldn’t get their medicine.”
Faber has not indicated when he will rule on the case.