The City of Huntington v. Amerisourcebergen Drug Corp., Civil Action 3:17-01362

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtDavid A. Faber Senior United States District Judge
PartiesTHE CITY OF HUNTINGTON, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants. CABELL COUNTY COMMISSION, Plaintiff, v. AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.
Docket NumberCivil Action 3:17-01362,3:17-01665
Decision Date04 July 2022

THE CITY OF HUNTINGTON, Plaintiff,
v.

AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.

CABELL COUNTY COMMISSION, Plaintiff,
v.

AMERISOURCEBERGEN DRUG CORPORATION, et al., Defendants.

Civil Action Nos. 3:17-01362, 3:17-01665

United States District Court, S.D. West Virginia

July 4, 2022


FINDINGS OF FACT AND CONCLUSIONS OF LAW

David A. Faber Senior United States District Judge

These two cases are related to thousands of other lawsuits that have been filed throughout the country in recent years relating to the opioid crisis. The Opioid MDL (MDL 2804) was created by the Judicial Panel on Multidistrict Litigation (JPML) in December of 2017 after the JPML determined that a large number of cases should be centralized for pretrial proceedings in the Northern District of Ohio to coordinate the resolution of these actions. In re Nat'l Prescription Opiate Litig., 290 F.Supp.3d 1375, 1378 (J.P.M.L. 2017).

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These two cases, designated in the MDL as “Track Two” cases, were remanded to this court for further proceedings.

A bench trial was held on May 3, 2021, through July 12, 2021. Closing arguments were held on July 27 and July 28, 2021. Set forth herein are the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

Because this case was tried before the court as a bench trial, the court's findings are presumed to be based on admissible evidence. See Fishing Fleet, Inc. v. Trident Ins., 598 F.2d 925, 929 (5th Cir. 1979); see also Harris v. Rivera, 454 U.S. 339, 346 (1981) (“In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.”); Chicago Title Ins. v. IMG Exeter Assocs. Ltd., 985 F.2d 553, 1993 WL 27392 at *4 (4th Cir. 1993) (“[A] judge presiding over a bench trial is presumed to consider only relevant, admissible evidence.”) (unpublished). Accordingly, the court finds it unnecessary to rule on each separate evidentiary objection raised by the parties. The court has considered those objections relating to the evidence supporting the findings contained herein and, to the extent such objections relate to the evidence which the court cites in support of its findings, such objections are hereby overruled.

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Plaintiffs, a West Virginia city and a West Virginia county, proceeded in this case on a single cause of action, public nuisance, against three wholesale distributors of medical products. According to plaintiffs, defendants' wholesale distribution of prescription opioids in Huntington and Cabell County created an opioid epidemic, which has caused a public nuisance in those localities. Plaintiffs contend that they seek relief in the form of abatement of the alleged nuisance.

Though they may disagree as to certain particulars, the parties agree that there is an opioid epidemic in the United States, as well as the City of Huntington and Cabell County. The parties further agree that the epidemic was fueled, at least in part, by prescription opioids. As the MDL court described it:

It is accurate to describe the opioid epidemic as a man-made plague, twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated. As this Court has previously stated, it is hard to find anyone . . . who does not have a family member, a friend, a parent of a friend, or a child of a friend who has not been affected

In re Nat'l Prescription Opiate Litig., No. 1:17-MD-2804, 2018 WL 6628898, at *21 (N.D. Ohio Dec. 19, 2018).

FINDINGS OF FACT

I. Background

The plaintiffs are The City of Huntington (“City of Huntington” or “Huntington”), a West Virginia city, and the

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County Commission of Cabell County (“Cabell County” or “Cabell”), a West Virginia county commission (collectively, “plaintiffs” or “Cabell/Huntington”). See Third Amend. Compl. ¶¶ 26-30 (ECF No. 80). The defendants are AmerisourceBergen Drug Corporation (“ABDC”), Cardinal Health, Inc. (“Cardinal Health” or “Cardinal”), and McKesson Corporation (“McKesson”) (collectively, “defendants”). See id. at ¶¶ 127-30, 133-36, 140-43.[1]

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The Third Amended Complaint is the operative pleading.

Defendants are wholesale distributors of pharmaceutical and other products, including prescription and over-the-counter (OTC) medicines, as well as health and beauty aids. Defendants distribute a full line of medical products and supplies to pharmacies and hospitals across the United States.

Chris Zimmerman of ABDC described the important role that wholesale distributors play in maintaining an efficient supply chain between manufacturers and pharmacies:

[T]here's 2,000 manufacturers . . . that we buy products from where we purchase - - we carry anywhere from 60,000 different items within our warehouses and . . . we have over 16,000 pharmacy customers.
So, what we do, without a distributor, each one of those 2,000 manufacturers have to ship direct to the pharmacy. And those pharmacies would have to place 2,000 separate orders. They'd have to receive 2,000 separate receipts at the door each day. And that's just the product going out.
There's also the setup of the customers. The manufacturers only have to set up a few distributors and sell their products to the distributors. And then, we handle all the pharmacies, making sure that they have an appropriate license . . .
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[M]anufacturers couldn't handle it because they ship like once a week, where we ship every single day, and the pharmacies need those products the following day.

Zimmerman, 5/13/21, at 151.

Each defendant operates multiple distribution centers across the United States. ABDC has 27 distribution centers; Cardinal has more than 20; and McKesson has 28. See Zimmerman, 5/12/21, at 149; Mone, 5/20/21, at 167; Oriente, 5/25/21, at 13.

II. The Witnesses

Seventy witnesses testified at trial, either live or by designation. They are:

1. Robert “Corey” Waller is a physician and Associate Professor at Michigan State University. See Waller, 5/4/21, at 11-12. Dr. Waller was qualified as an expert in the fields of neuroscience, addiction, and pain. See id. at 20.

2. David Courtwright is a historian who taught at the University of North Florida and other institutions before retiring in 2019. See Courtwright, 5/5/21, at 10. Dr. Courtwright was qualified as an expert in the history of opiate use and abuse in drug policy. See id. at 18.

3. Rahul Gupta served as Physician Director, Local Health Officer, and Executive Director of the Kanawha-Charleston Health Department from March 2009 to December 2014. See Gupta, 5/5/21, at 47. Dr. Gupta also served as the Commissioner for the Bureau of Public Health and Human Resources and the State Health

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Officer for the State of West Virginia from January 2015 to November 2018. See id. at 47.

4. Connie Priddy is the Director of Quality Compliance at Cabell County EMS and the Program Coordinator for the Huntington Quick Response Team (“QRT”). See Priddy, 5/6/21, at 182-83. Ms. Priddy is also a licensed nurse. See id. at 183-85.

5. Jan Rader is the Huntington Fire Chief and is also a nurse. See Rader, 5/7/21, at 27, 29. Chief Rader has been with the Huntington Fire Department for 27 years. See id. at 27-28.

6. Craig McCann is a data analyst at Securities Litigation and Consulting Group, Inc. See McCann, 5/10/21, at 9. Dr. McCann was qualified as an expert on data processing, validating, reconciling, and summarizing large datasets as they relate to ARCOS and related governmental datasets. See id. at 20.

7. Chris Zimmerman is the Senior Vice President of Corporate Security and Regulatory Affairs at ABDC. See Zimmerman, 5/12/21, at 128. He has been with ABDC (or its predecessor company) since 1990. See id.

8. Donna Kelley is employed at Discount Emporium, Inc., doing business as Drug Emporium. See Kelley, 5/13/21, at 229. She testified as a records custodian for Drug Emporium. See id.

9. David May is the Vice President of Diversion Control and Security for ABDC. See May, 5/14/21, at 13. He has been

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with the company since 2014. See id. at 14. Prior to joining ABDC, he worked for the DEA for thirty years. See id. at 16-17.

10. Stephen Mays is the Vice President of Regulatory Affairs for ABDC. See 5/17/21, at 177-78. He has been an employee for ABDC or its predecessor companies since 1974. See Mays, 5/18/21, at 145-46.

11. Michael Perry was a Sales Executive with ABDC from 1996 until 2020, when he retired. See Perry, 5/19/21, at 67-68.

12. Michael Mone was employed by Cardinal Health from 2006 to 2012. See Mone, 5/19/21, at 203. In December of 2007, Mr. Mone assumed the position of Vice President of Anti-Diversion for Cardinal. See id. at 205. Mr. Mone has been a practicing pharmacist as well as a practicing attorney. See Mone, 5/20/21, at 152-53.

13. Joseph Werthammer is a pediatrician with a subspecialty in neonatology, and currently works as a full-time neonatologist. See Werthammer, 5/21/21, at 9-10. Dr. Werthammer practices at the Cabell-Huntington Hospital and the School of Medicine at Marshall University. See id. at 10.

14. Jesse Kave was employed by Cardinal Health as a business consultant in its sales department from 2006 to 2018. See Kave, 5/21/21, at 62-64.

15. Scott Lemley is the Director of Innovation for the City of Huntington. See Lemley, 5/21/21, at 112. He previously

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worked as a Criminal Intelligence Analyst for the Huntington Police Department and as a member of the Mayor's Office of Drug Control Policy. See id. at 112-13.

16. Michael Oriente has been employed at McKesson since 2004. See Oriente, 5/25/21, at 18. He was a Director of Operations for one of McKesson's distribution centers for three years before becoming a Director of Regulatory Affairs. See Id. at 18-19.

17. Timothy Ashworth is a Regional Sales Manager for McKesson. See Ashworth, 5/25/21, at 194. He has been with McKesson since 2005. See id. at 195...

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