Defense attorneys tried to find holes in assertions by the plaintiffs and their witnesses as two-day closing arguments wrapped up in the bench trial of a lawsuit against distributors AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp.
In a state that has had the nation’s highest fatal opioid overdose rate, Cabell County and the city of Huntington are seeking more than $2.5 billion from the distributors that would go toward abatement efforts. A verdict isn't expected for at least three weeks.
Some 81 million pills were sent to the community of about 100,000 along the Ohio River from 2006 to 2014. The lawsuit accused the companies of creating a “public nuisance” with the onslaught and ignoring the signs that the area was being ravaged by addiction.
The companies have placed the responsibility on doctors writing prescriptions and say poor communication and pill quotas set by federal agents also were to blame.
Cardinal Health attorney Enu Mainigi tried to minimize the company’s involvement during her nearly two-hour closing argument, saying that over 32 days at trial, the court heard little about its conduct.
“None of the evidence shows Cardinal Health’s conduct was unreasonable,” Mainigi said. “There’s no witness that has given the court a basis to find that we were a direct cause.”
She also said distributors are not responsible for the diversion of pills from patients into others' hands, whether that medication is sold, stolen or given away.
“That's a crime," she said. “And Cardinal Health can’t stop any of that from happening.”
According to testimony, there were nearly 6,500 overdoses in Huntington and Cabell County from 2015 to 2020, while there were 1,151 drug-related deaths from 2001 to 2018. About 2,500 babies have been born exposed to drugs and 8,252 people suffer from opioid use disorder — or about 10% of the current population.
Like Mainigi, McKesson attorney Timothy Hester tried to downplay his company's role, saying that 76% of McKesson's pill shipments went to a veterans hospital in Huntington.
“McKesson did not distribute 81 million pills,” Hester said.
He said higher pill volumes in the county were driven by an increase in prescriptions, and he echoed Mainigi in saying the plaintiffs’ claim of harm was caused by pill diversion. However, no evidence was given by the plaintiffs that pills were diverted from VA shipments, Hester said.
“The key players who contributed to this volume of prescription opioids are not parties here," including doctors, drug dealers, pill manufacturers, pharmacies and three pill distributors in the area who are bigger than McKesson but are not part of the case, Hester said.
Plaintiff attorney Paul Farrell, representing Cabell County, said he took “great offense” at some of the defense's comments, including a notion that the distributors had no responsibility to control the supply of pills. If that were the case, the pills shouldn't need a registration as required with the federal government.
"They should just be in delivery trucks," Farrell said.
Farrell said the distributors had a duty to block larger orders that were deemed suspicious. “If the number of pills that came into Huntington and Cabell County, West Virginia, isn't suspicious, I don't know what is,” he said.
“We had 81 million pills,” Farrell said. “And it wasn’t by accident.”
Similar lawsuits have resulted in multimillion-dollar settlements, but this is the first time allegations have wound up at federal trial. The result could have huge effects on similar lawsuits that have been filed across the country.
Last week, lawyers for state and local governments announced a potential $26 billion settlement over the toll of opioids with AmerisourceBergen, Cardinal Health and McKesson as well as drugmaker Johnson & Johnson. After full details are shared, each state will have 30 days to decide whether to join. And local governments will have five months after that to decide. If governments don’t opt in, the settlement total would go down.
In separate, similar lawsuits, the state of West Virginia reached a $37 million settlement with McKesson in 2019, and $20 million with Cardinal Health and $16 million with AmerisourceBergen in 2017.