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Distributors can't 'second-guess' opioid scripts, W. Va. judge told

5 minute read

A general view of the courthouse where the three largest U.S. drug distributors are facing their first trial over claims that they fueled the opioid crisis, in Charleston, West Virginia. REUTERS/Brendan Pierson/File Photo

  • Distributors say changing prescription practices drove epidemic
  • First opioid trial against distributors concludes as potential settlement looms

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(Reuters) - Holding drug distributors liable for the opioid epidemic would undermine doctors' role in weighing the drugs' risks and benefits, a lawyer for McKesson Corp told a federal judge on Wednesday, as a landmark trial of West Virginia city and county's claims against the nation's largest distributors drew to a close.

"It would force distributors to second-guess doctors' prescribing decisions," potentially interfering in patients' access to appropriate treatment, Timothy Hester of Covington & Burling told U.S. District Judge David Faber in Charleston in his closing argument.

Hester's argument echoed those made by McKesson's co-defendants – Cardinal Health Inc, represented by Enu Mainigi of Williams & Connolly, and AmerisourceBergen Corp, represented by Robert Nicholas of Reed Smith.

In their closing arguments Tuesday, Paul Farrell of Farrell Law, representing Cabell County, and Anne Kearse of Motley Rice, representing the city of Huntington, told Faber that the sheer volume of pills sold in the region over about an eight-year period – more than 81 million in a community of fewer than 100,000 people – proved that the distributors failed to monitor suspicious orders. The plaintiffs seek $2.5 billion to abate their opioid crisis.

The defendants countered that the sharp rise in opioid sales in the 1990s and 2000s was driven by changes in the practice of medicine emphasizing treatment of pain, which led to an explosion of prescriptions.

Mainigi said that West Virginia recorded more prescriptions compared to the rest of the country of all drugs, not just opioids, reflecting an older population with a higher incidence of various health problems. In that context, she said, the volume of opioids was "completely reasonable."

The companies also rebuffed the plaintiffs' efforts to hold them liable for illegal "medicine cabinet diversion" of legitimately prescribed pills, as well as for the rise of black market heroin and fentanyl allegedly spawned by the surge of legal prescriptions.

"Illegal drugs are driven by drug cartels and drug dealers, not the distributors of legal medicines," Hester said.

In a brief rebuttal, Farrell said the defendants likened the flood of opioid prescriptions to a "blowout" of a dam.

"They're supposed to prevent the blowouts," he said.

Faber gave the parties three weeks to submit final proposed findings, after which he is expected to make his decision.

The trial ends less than a week after more than a dozen state attorneys general proposed a $26 billion nationwide settlement with the distributors and drugmaker Johnson & Johnson. Huntington and Cabell County did not join the deal, betting they can do better on their own.

The outcome of their case, the first against the distributors to go to trial, could influence whether other local governments sign on to the nationwide settlement.

States have 30 days from the deal's announcement last week to join. Once a state joins, its local governments have 120 days.

Nationwide, nearly 500,000 people died from opioid overdoses from 1999 to 2019, according to the U.S. Centers for Disease Control and Prevention. The CDC earlier this month said provisional data showed 69,710 opioid overdose deaths in 2020, up more than 36% from the previous year.

The case is City of Huntington, West Virginia v. AmerisourceBergen Drug Corp, U.S. District Court, Southern District of West Virginia, No. 3:17-cv-01362.

For Cabell County: Paul Farrell of Farrell Law

For Huntington: Anne Kearse of Motley Rice

For AmerisourceBergen: Robert Nicholas of Reed Smith

For Cardinal: Enu Mainigi of Williams & Connolly

For McKesson: Timothy Hester of Covington & Burling

Read more:

W. Va. city, drug distributors trade final words in landmark opioid trial

State AGs urge support for landmark $26 billion opioid settlement

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.

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