City of Huntington v. Amerisourcebergen Drug Corp.

• Decision Date: 09 July 2021
• Docket Number: Civil Action No. 3:17-01362,Civil Action No. 3:17-01665
• Parties: THE CITY OF HUNTINGTON, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants. v. CABELL COUNTY COMMISSION, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

THE CITY OF HUNTINGTON, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants. v. CABELL COUNTY COMMISSION, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.

Civil Action No. 3:17-01362

Civil Action No. 3:17-01665

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

July 9, 2021

MEMORANDUM OPINION

During the testimony of Dr. Craig McCann, plaintiffs introduced charts that Dr. McCann created to summarize certain datasets. Plaintiffs contend that these charts are admissible under Federal Rule of Evidence 1006. Defendants contend that they are not. According to defendants, the summaries are merely demonstrative exhibits, not substantive evidence. On May 12, 2021, the court conditionally admitted the summaries under Rule 1006 and ordered briefing on the issue. On May 18, 2021, the court ruled that the summaries are admissible under Rule 1006, thereby overruling defendants' objection and admitting the charts.¹ The court now sets forth its reasoning.

I. Background

a. Dr. McCann

McCann received a Ph.D. in economics from the University of California at Los Angeles in 1989. Throughout the 1990s, he taught graduate-level economics and finance courses at the University of South Carolina (1987 to 1992), Virginia Tech (1995 to 1997), Georgetown University (1996), and the University of Maryland (1995 to 1998). In addition, he served as an academic fellow for the U.S. Securities and Exchange Commission.

In re Nat'l Prescription Opiate Litig., 2019 WL 3934490, at *7 (N.D. Ohio Aug. 20, 2019) (citations omitted).

McCann explained that during the time of his doctoral studies, "some of [his] peers were what we would call theoreticians and others empiricists." (May 10, 2021 Trial Tr. 10, ECF No. 1333.) McCann describes himself as an empiricist. Of his approximately 35 peer-reviewed papers, the "vast majorityof them" are "empirical" and involve "gathering data from different sources, reporting summary statistics, generating tables, figures, charts." (Id. at 13-14.) McCann indicated that those empirical papers tend to go "beyond the simple data summary of the type [presented] here with the opioid data" by including "some statistical analysis or some valuation." (Id.)

McCann has testified in the context of state or federal litigation approximately 150 times, and in the context of administrative proceedings or arbitrations approximately 450 times. On May 10, 2021, this court found McCann to be "an expert on data processing, validating, supplementing, reconciling and summarizing large datasets as they relate to ARCOS and the related governmental datasets that [plaintiffs] used to supplement them." (Id. at 19-20.)²

b. ARCOS Data

The court has previously described the Drug Enforcement Administration's Automation of Reports and Consolidated Orders System ("ARCOS") database. (See ECF No. 1236, at 1-4.) Generally speaking, ARCOS is a system that receives reports regarding the flow of controlled substances, including opioids, among different members of the supply chain. ARCOS can bethought of as a "portal" through which the DEA gathers data regarding opioid shipments. (See ECF No. 1333, at 21.) The repository of data that the portal collects can be referred to as the ARCOS data.

The ARCOS data here is a subset of the entirety of the ARCOS data in existence. It covers only 9 years (2006-2014) and only 14 drug codes. The DEA produced this raw data in "tranches," with the production of the last tranche taking place in approximately August 2018. (Id. at 21.) The raw ARCOS data amounts to "roughly 500 million records of shipments," which, if printed, would fill up approximately 20,000 banker's boxes. (Id. at 28.)

There is no dispute that the ARCOS data is admissible.³ There is also no dispute that it is unworkable in the manner in which the DEA produced it. The only way to comprehend this admissible evidence in a meaningful way is to summarize it.⁴

c. Defendants' Transactional Data

ARCOS data is not the only source of information pertaining to the quantity and frequency of opioid shipments from defendants into plaintiffs' jurisdictions. Defendants' internal records of these shipments, which they produced in discovery, is another source. These records go beyond the timeframe of the ARCOS data. AmerisourceBergen produced records for June 2002 to December 2018. (ECF No. 1333, at 81-82.) Cardinal produced records for 1996 to May 2018. (Id. at 85.) McKesson produced records from 2004 to 2018. (Id. at 88.) The McCann charts summarize these records (the "transactional data") to the extent that the charts at least partially cover time outside the 2006 to 2014 ARCOS window or, rarely, when there are slight gaps in the ARCOS data.⁵

d. McCann's Summaries

McCann produced summaries in the form of charts.⁶ The charts tabulate or illustrate a morass of data to make it comprehensible. These charts do not purport to summarize all of the ARCOS data that the DEA produced. Instead, for this case, McCann narrowed his subject of summary to only the ARCOS data that bears on this case. He did not include distributions, for example, bound for export or research, or to the state of Washington (except to the extent such shipments are included in national figures and averages), or to hospitals.

Just as McCann does not attempt to summarize all of the ARCOS data, so too, he does not limit his summaries to the ARCOS data alone. Specifically, many of his summaries capture both the ARCOS data and defendants' transactional data produced in discovery. It is therefore both too narrow and too broad to think of all of McCann's charts as strictly ARCOS data charts. Some are summaries of a subset of the ARCOS data, while others are summaries of a subset of the ARCOS data, plus the transactional data. Some charts summarize shipments to individual pharmacies; others, shipments to multiple pharmacies; and still others, shipments into geographical areas. Somecharts focus on distributions by defendants (or a single defendant), while others include all distributors. Many compare distributions into different geographical areas.

II. Discussion

Defendants argue that Rule 1006 does not embrace the McCann charts for two main reasons. First, they argue that what McCann created are not proper Rule 1006 charts because (1) he used information not available on the face of the raw ARCOS data (such as U.S. Census Bureau data and information from the Centers for Disease Control and Prevention) to calculate and convey information such as per capita figures and morphine milligram equivalent ("MME") figures; and (2) he narrowed his subject of summary and made certain corrections to the data. Second, they argue that the charts are skewed. The court is unpersuaded by both arguments.

Rule 1006 provides:

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Fed. R. Evid. 1006.

Federal courts have wide discretion in determining whether to admit evidence under Rule 1006. United States v. Blackwell,436 F. App'x 192, 198 (4th Cir. 2011); United States v. Milkiewicz, 470 F.3d 390, 398 (1st Cir. 2006) (appellate review "highly deferential"); 31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 8044 (2021) ("[T]he convenience standard of Rule 1006 gives trial courts significant discretion."). This discretion, however, is not unbounded. First, the proffered summaries must meet certain basic requirements. They must be "an accurate compilation." United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004). They must be based on records that are admissible and that have been provided to the opposing party. Id. at 272-73. And sometimes they must be produced in court. Id. at 273. Thus, there are dual safeguards to ensure against bad summaries: (1) a threshold accuracy requirement and (2) a procedure to ensure the opposing party an opportunity to bring inaccuracies to light. See id. at 272-73.

Properly understood, the threshold accuracy requirement is a modest one. Charts are admissible despite mistakes. United States v. Hemphill, 514 F.3d 1350, 1359 (D.C. Cir. 2008) ("Even if the calculations are mistaken, the chart is itself admissible, since admissible evidence may be unpersuasive and a defendant has the opportunity to rebut it."). Charts are admissible despite their encompassing less than all the underlying data. United States v. Blackwell, 436 F. App'x 192,199 (4th Cir. 2011); United States v. Bentley, 825 F.2d 1104, 1108 (7th Cir. 1987) ("[C]harts need not be encyclopedic to be admissible."); Gill v. Arab Bank 893 F. Supp. 2d 523, 536 (E.D.N.Y. 2012) (Weinstein, J.). And there is an important distinction between an inaccurate chart and a chart that supports only one side of the story. See United States v. Lynch, 735 F. App'x 780, 786 (3d Cir. 2018) ("A Rule 1006 summary chart need not accurately reflect all the facts in the case; it merely must accurately represent the facts that it purports to summarize. 'So long as they are accurate, however, such summaries may present only one party's side of the case.' The fact that G-94 did not include all the related accounts does not undermine its admissibility because it accurately reflected the accounts it did include. It was up to Lynch, on cross-examination, to show the jury that there was more to the story, and he effectively did so." (citations omitted)).

Besides these basic requirements, Fourth Circuit precedent cabins the wide discretion that trial courts have under Rule 1006, in either direction. On one hand, when proffered summaries meet the basic requirements of Rule 1006, a district court in this circuit abuses its discretion by cutting off both the summary path and ...