Opioid MDL Bellwether Trial Underway in West Virginia

Carolyn Casey, J.D.

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— Updated on May 21, 2021

Opioid MDL Bellwether Trial Underway in West Virginia

In West Virginia’s Southern District, a major opioid-related MDL bellwether trial recently began. Several WV local governments brought the initial action against drugmakers AmerisourceBergen Drug Co., Cardinal Health Inc., and McKesson Corp. The complaint alleges the defendants played an integral role in the widespread distribution of opioid drugs throughout the state. Senior U.S. District Judge David Faber is presiding over the 12-week trial.

The trial kicks off on the heels of multi-million dollar settlements in several other opioid crisis cases. After COVID-19-related postponements, this trial will set a significant precedent for hundreds of other pending opioid crisis lawsuits.

A Crisis in West Virginia

The city of Huntington and Cabell County, WV filed a lawsuit against drugmakers in 2017. The complaint sought $500 million towards opioid crisis recovery efforts and resources for the victims. Also, the plaintiffs assert the defendants’ distribution of over 80 million opioid doses over an eight-year period created a public nuisance. Additionally, the boom in distribution came during a time when opioid addiction overwhelmed the community. The local governments argue that the drugmakers “had a responsibility to ensure that the billions of pain pills pumped into their communities were not diverted for illegal use.” This case will surely become a landmark as many other lawsuits also hinge on this public nuisance theory.

Turning a Blind Eye Hurt the Public

The claimants say that the drugmakers failed to report suspicious orders even as opioid addiction spiraled out of control. In an opening statement at the trial, the plaintiffs’ counsel stated they “would show the distributors ignored numerous “black flags” that their drugs were being diverted into illegal channels.” In addition, the city and county lawyers intend to prove that the defendants’ sales of massive amounts of opioid pills fueled the opioid epidemic in their community.

Former WV Health Official Testifies

Dr. Rahul Gupta, former West Virginia public health commissioner, testified that the state opioid problem persists and continues to record the highest overdose rates and abuse. A state report cites approximately 7,200 deaths from 2001 to 2015 across West Virginia—a majority being adults 35-54 years old—with at least one opiate present in the body. In response, Dr. Gupta said “[T]hese were the hard-working West Virginians who were being impacted in the prime of their lives.” The defendants attempted to block Dr. Gupta from testifying. Further, they objected several times over the course of his testimony.

On the Ground Testimony

A quick response team (QRT) leader from Cabell County testified that 90-95% of the Cabell EMS runs are opioid-related. Another witness, Huntington Fire Chief Jan Rader, described the devastation she saw across the community from drug abuse. “This day has been a long time coming,” she said. “This day is for all those suffering from substance use disorder who have lost their lives or have lost a loved one from this horrible disease.” The three defendants had no questions after the fire chief’s emotional testimony.

Addiction Medicine Expert Testifies

An expert in addiction medicine, Dr. Corey Waller, testified on dopamine’s role in substance abuse. People feel more invincible as the “happy hormone” dopamine rises in their bodies, explained Dr. Waller. Under normal circumstances, dopamine’s naturally occurring level might be 100 nanograms per deciliter in most people. Dr. Waller further explained that with the use of semisynthetic opioids like oxycodone, hydrocodone, or heroin, dopamine levels can rise to 900 nanograms per deciliter. He also commented that “the skyrocketing increase of dopamine from opioid medicine permanently harms the body, … leading to substance use disorder and the behavioral issues that come with it.”

The Defense Strategy: Merely Middlemen

The defendants have argued that they are middlemen and not responsible for an epidemic that has killed nearly 500,000 people in the U.S. Also, they claim it is doctors who determine the number of opioids sold in West Virginia. They further assert that the U.S. Drug Enforcement Administration sets production quotas.

In addition, a lawyer for Cardinal Health said in court that a shift to more aggressive pain treatment in the medical community drove the surge in opioid prescriptions in the 2000s. “We are a mirror on what happens in healthcare,” the lawyer said at trial.  “We reflect it, we don’t drive it.”

Shifting the Blame

To shift blame and responsibility away from drugmakers, their attorneys argued in court that post-delivery activities and occurrences are out of their control. They maintain that the distributors also had “no authority over illicit street drugs, the cause of the current crisis.” Additionally, the defense alleges merely filled orders when the “Drug Enforcement Administration, West Virginia Board of Medicine and others asked for larger shipments.” Therefore, they allege it’s not up to the defendants to second-guess the “good-faith decisions of prescribing doctors in Cabell County or the city of Huntington.”

Keep Your Periscope Up

Attorneys representing clients in other opioid crisis lawsuits will want to keep a close watch on this fast-moving trial. How the plaintiffs present their case and how defendants react and counterpunch may prove extremely useful in other cases. Of course, the outcome of this landmark case will have an enormous influence on other courts and opioid-related litigants across the country.

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