A federal judge in Charleston expects that a courtroom will be limited to attorneys, witnesses and court officials as Huntington, Cabell County and opioid distributors inch toward a May trial date.
Lawsuits on behalf of the municipalities were filed in 2017 against AmerisourceBergen Corp., McKesson and Cardinal Health — the “Big Three” drug distributors. They are accused of being a public nuisance by blindly pumping pain pills into Appalachia, thus fueling opioid and, later, heroin addiction. The lawsuits argue that the distributors breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates.
The sides met for a virtual pretrial hearing Wednesday to debate outstanding motions, at which time Judge David Faber also discussed logistics for the trial, which is set to start May 3.
Following U.S. Centers for Disease Control and Prevention recommendations about COVID-19, Faber said that, most likely, only 30 people will be allowed in the courtroom at any given time. Each of the four parties will be limited to five attorneys, leaving room for only court officials and witnesses, who also might have attorneys in attendance.
An “overflow” courtroom will be available for the news media, members of the public and others who want to attend the trial. While several hearings have been held via video conference online, a similar feed will not be available at the trial. If needed, a second overflow courtroom will be made available, the judge said.
Several other guidelines are being worked out, as well, to limit the spread of COVID-19.
Among motions argued during Wednesday’s hearing, the defendants asked Faber to limit the geographic scope allowed to be brought up at the trial by the governments and testimony from the governments’ marketing experts.
In asking for the limitation, Ashley Hardin, an attorney for Cardinal Health, said there is no evidence any pills were shipped to areas outside West Virginia. However, plaintiff attorney Paul Farrell Jr. pointed to the “Oxy Express” and “Blue” highways, names made for trafficking routes into Appalachia.
Hardin argued that the defendants were not participants in such routes, thus those geographic areas do not matter, as far as Huntington and Cabell’s allegations. Hardin also argued that the plaintiff wants to use national trends and distribution data to serve as a benchmark for what the distributors should have known were reasonable shipments.
Farrell argued that, while the defendants said national trends cannot prove anything wrong had been occurring in Cabell County, the businesses’ monitoring system was part of a systemic failure.
“What happened with the volume of pills in Huntington, Cabell County was not a mistake. It was not an isolated event,” he said. “It was the result of a systemic failure by each of the three defendants to comply with their regulatory duties to identify, block and report suspicious orders.”
In a separate motion, the defendants asked the judge to exclude testimony from several plaintiff witnesses who are expected to testify about how marketing methods led doctors to prescribe more opioids in the area.
Defendant attorneys said Ohio federal Judge Dan Polster found that at least two of the experts are not qualified to give an opinion on marketing because of a lack of experience, training or education in the field. Polster previously oversaw Huntington and Cabell County’s case before remanding it back to West Virginia. He continues to preside over hundreds of other cases.
The plaintiffs said Polster’s exclusion of what those experts could say was extremely narrow, while the defendants are asking that Faber throw out their entire testimony.
In the final motion discussed, the plaintiffs asked the judge to order the defendants to agree on the Drug Enforcement Administration’s Automation of Reports and Consolidated Orders System, known as ARCOS, data, which shows the number of pills that left their facilities during the height of opioid pill distribution.
Faber did not rule on any of the three motions Wednesday but said an order will be issued soon.