HUNTINGTON — As attorneys attempt to navigate uncharted waters created by the COVID-19 pandemic, sides met via a video conference Wednesday in an effort to push a Cabell County and Huntington lawsuit against opioid distributors forward.
During the hearing, a new trial date was set and motions were heard in which the governments accuse three opioid distributors of helping create and fuel opioid abuse in the area.
AmerisourceBergen Corp., McKesson and Cardinal Health — the “Big Three” drug distributors — were named as defendants in the lawsuit in 2017, accusing them of blindly pumping pain pills into Appalachia, thus fueling opioid and later heroin addiction. More than 3,000 cases have been filed since by others.
The case had been set to go to trial this week in Charleston but was postponed when U.S. District Court Judge David A. Faber ruled it was too risky to proceed — a ruling made at least twice in 2020, before the COVID-19 cases began to skyrocket across the country.
Despite the defense’s wish to delay the trial until fall, Faber set opening statements for May 3, with each side getting half a day to make their statements. Each side will receive six weeks to present its case, with possible breaks for holidays and important conferences.
The amount of time allotted will be fluid, Faber said, to give sides time to do proper examinations of witnesses. The defense is expected to begin presenting evidence June 28, and the trial is expected to end around Aug. 9.
Steve Ruby, an attorney for Cardinal Health, asked the judge to delay setting a trial date until the next video conference in February.
“Our concern is that if we put an early date on the books and the rollout continues in the way it has so far, we are going to be back here in two or three months facing the reality that it will be difficult or impossible to have a trial,” he said.
Faber denied the request.
“I think this has gone on an awful long time and we need to get some closure,” he said. “That’s not going to happen until we have a schedule.”
Plaintiffs’ attorneys, including Huntington’s Paul Farrell Jr., had previously pointed to data that showed the opioid epidemic was worsening during the COVID-19 pandemic as a reason to move forward as soon as possible.
U.S. Drug Enforcement Administration ARCOS data show that from 2006 to the end of 2016, West Virginia received 853.5 million prescription pain pills. Of those, 65 million — about 96 per person, per year — were distributed in Cabell County, with millions more going to surrounding counties. West Virginia, one of the hardest-hit areas for the opioid epidemic, suffered 1,017 overdose deaths in 2017, with Cabell County accounting for 157 of those.
The lawsuit argues the defendants had a duty to monitor and investigate suspicious orders of the opioids and failed to do so, but the defendants deny any wrongdoing.
Now ready for trial, the case has remained at a stalemate for nearly nine months due to the COVID-19 pandemic. As many as 200 witnesses and a countless number of attorneys and others could travel from across the country for the proceedings.
Among arguments made during Wednesday’s hearing, the defense attempted to block opinion-based testimony by eight witnesses who walk the line between fact and opinion experts. Those witnesses were interviewed without knowledge they could be experts expressing their opinion on the matter instead of just the facts, and thus questions about their opinions were not asked, the defense said.
The plaintiffs argued the defense had been made aware of the witnesses months ago and that their testimony about their roles, investigations and eyewitness accounts during the crisis are vital to their case.
Much of that focus was blocking the testimony of former West Virginia Chief Health Officer Dr. Rahul Gupta.
Gupta is being paid $500 an hour as an expert opinion witness in a parallel state case with similar accusations, they said, but he is being presented as an unpaid fact expert in the federal case, Ruby said.
Farrell said plaintiffs wanted him to testify to his experiences and role during the pandemic, not on his expert opinion about the situation.
“They want to exclude him because he has a lot of relevant, factual testimony about what happened in West Virginia,” he said.
In another motion, the plaintiffs asked that the ARCOS data be placed into the record without them having to present it at trial, which could take several days. Farrell said there are about 500 million lines in the database.
The defendants objected to the motion, stating the dataset was “potentially under dispute” because of its massive size. While they seek to limit the amount of ARCOS data presented at trial to Cabell County, Farrell said it was important to include it all to show the entire picture. The defense suggested the plaintiffs wanted to spend their allotted time going over that during trial.
The plaintiffs are also seeking to introduce data from a platform tracking individual prescriptions at a pharmaceutical level.
They said the numbers would show that a large number of opioids were being prescribed by a small number of doctors, which the defendants should have been aware of, plaintiff attorney Anthony Majestro said.
Ashley Hardin, representing Cardinal Health, said the data was hearsay data some defendants had not received. Distributors do not use the data, she said, and thus it was not connected to their case.
“It is not our obligation to police prescribing,” she said.
Faber is expected to make a ruling on those motions later this month.