Thread by @HesslerHD

I’m back for day 33 of the #opioidtrial in Charleston, W.Va. Yesterday Hunt. Mayor Steve Williams, the final plaintiff witness, testified how the city went from failing to arrest its way out of the crisis to being a “recovery capital”. herald-dispatch.com/news/huntingto…

Today attorneys on either side will argue motions and take some housekeeping measures. I will do my best to interpret the legalese, but expect it will be complex. The first defense witness is expected to take the stand tomorrow.

Can I get one of those @KimKardashian law degrees at the end of this trial?

After 32 days of testimony, the city of Huntington and Cabell Court have rested their case. Moving to motions now.

The defendants are each asking for the state to be tossed, arguing the plaintiffs did not prove their case. (This is standard in trials)

The attorneys argue WV law and rulings from judges state conduct must be proximate, not a remote cause of injury.

They argue doctor prescribing and illicit drug dealers are the proximate cause.

The plaintiffs are attempting to lean solely on the high volume of pills being shipped to the county, but the defense said the number of pills distributed matched the number of pills prescribed.

Faber said wasn’t there evidence of the defendants failing to have a proper suspicious order monitoring system?

The attorney said there was no evidence of such. He believes the evidence showed the opposite.

….it’s been a few weeks but I’m pretty sure a lot of testimony said otherwise.

Defense said they were sending shipment numbers to the DEA within two days, but the DEA witness said the amount of data was overwhelming and they didn’t know what to do with it.

An attorney for Cardinal Health, said federal courts lack the power to grant relief not narrowly tailored to the wrongful conduct. The distributors are definitely not responsible for the conduct happening in the illicit drug market, he said.

The defendants have continuously throughout the trial attempted to divide the opioid crisis into two - a prescription pill one and an illicit opioid drug one. Several epidemiologists have held you cannot do that. They believe there is only one - the opioid crisis.

The attorney said Cardinal Health was transparent with the DEA about the way its suspicious order monitoring system worked and it operated its Wheeling Distribution Center without criticism.

The attorney said the plaintiffs cannot cite a single case in which a court has done what the the plaintiffs are asking the judge to do - make them pay $2.6 billion for the abatement plan.

Their plan is not narrowly tailored, he said. The plaintiffs want remedies for future addiction and the wrongs of others, remedies that are remote from Cardinal Health's Conduct and related to the root causes of drug abuse.

A McKesson attorney said the plaintiffs failed to prove there was unreasonable conduct by McKesson that was a substantial factor in bringing the current opioid abuse problem in Cabell/Huntington.

McKesson attorney Christian Pistilli said once you remove McKesson's VA hospital shipments from the equation, it only accounts for less than 6% of the market share of opioids and much lower than the West Virginia average.

The plaintiffs believe the evidence/testimony shows the trio had a systemic failure of their suspicious order monitoring programs, they each said they believe it proved the opposite.

The three defendants have reached several settlements with the DEA after alleged misconduct over the years, but the defendants said those settlements did not prove guilt or wrong doings by the companies.

Judge Faber questioned if the public nuisance law was broad enough to address the plaintiffs' claims for future abatement.

Timothy Hester said the plaintiffs are seeking damages, not abatement. Court opioids have held public nuisance is conduct - the doing of or the failure to do something.

The abatement plain calls for prevention, treatment, recovery and the needs of special populations. The plaintiff's remedy addresses harms caused by the defendants, not their conduct, defense attorney Hester said.

The plaintiffs waived their claims for damages to get a bench trial.

“They are stuck in a box,” he said.

The plan includes treatment for future OUD population, not those who have been harmed by the defendant's alleged misconduct, Hester said.

Hester said they are seeking claims for a future nuisance. Citing the WVSC ruling in the Duff V. Morgantown Energy Associates, he said the plaintiffs bear a heavy burden of proving harm is reasonably certain in the future as a result from the def. conduct.

Hester said the plaintiffs did not prove future conduct by the defendants. They don't even know if the defendants would be shipping opioids to the county in the future.

He said the court must avoid giving the city/county a "improper windfall. Mayor Williams said yesterday he would never expect the city government to run treatment programs. They have never run these programs, nor pay for them, thus cannot be awarded money to do so, he said.

He said its clear the community has a strong recovery community. They may in fact already have everything in place needed, but it will take time to see. The plaintiffs did not evaluate the programs specifically to determine if they were enough right now.

Hester said the plaintiffs did not give the judge enough guidance the court to know what type of relief would be proper. He said they are attempting to disguise a damages case as an abatement one.

We are going on a lunch break now. We are coming back at 2 pm (ughhhhhh) to hear from the plaintiffs.

We are back with plaintiff Anthony Majestro kicking it off. He said there are 40ish decisions from 20 states which have rejected the defendant's arguments. The judge said 2 or 3 also went in favor of the defense.

I think I have the numbers on our side,” Majestro said.

The judge just referenced West Virginia's obesity issue, which he said is partially because of overconsumption of pork products. What is stopping the plaintiffs from going after butchers and farmers for that issue, like what they have done to businesses in the pharm supply chain

Majestro said the defendants want to blame the people below and above them in the supply chain, but when it comes down to it, they were registrants with the DEA who had the same heighten responsibilities as others in the chain.

Majestro said the rule has always been that you don't ship a suspicious order without dispelling the suspicion.

He pointed to a deposition the judge listened to in chambers in which someone testified the existence of an annual opioid quota set by the DEA did not negate the defendant's duty to monitor and stop suspicious orders.

Paul T. Farrell Jr., another attorney, said “The measurement on whether or not their conduct is reasonable can be determined by looking at the volume of pills they sold."

He said the matter at hand has already been addressed via the Masters and Direct Sales Supreme court cases. The 1943 DS case, the SC ruled distributors should have known their morphine shipments to a rural doctor were excessive

The defendants said while the DEA took action against many of their various warehouses, none of them shipped pills to Cabell County.

Majestro: “There's no testimony the defendants’ policies were any different here than they were anywhere else,” he said.

These were systemic issues, he said. Joe Rannazzisi, former DEA exec, testified they didn't have the manpower to investigate every single warehouse when they found an issue at just one. They would take action against the 1 & others would follow whatever the settlement would be.

Judge having a conversation with Majestro now stating there are really two different crisis going on. Majestro said it two sides of same coin.

He said if there's a polluted water source, its not enough to stop the source, you've got to clean up the mess or it will cause harm.

Judge said you don't have to pay for everyone who got sick from the water, though.

Majestro said people who get sick from polluted water don't go into the community and affect their neighbors.

What sets opioid use disorder aside from other things - such as smoking - is that people with OUD are creating harms to others via crime, the spreading of disease, etc, Majestro said

“At what point is the abatement sufficient to correct the problem. You are proposing a net that is cast way beyond what I would think would be the normal (area),” he said.

Majestro said the existence of illegal drugs was caused in part by the defendants' conduct. Judge responded "well the gateway theory is a little thin isn't it".

Majestro said it is anything but that and questioned why the defense didn't mention it in their motion to dismiss this morning if it was weak.

Majestro pulling out some cases -
"The plaintiff is not required to show that defendant's actions were the sole proximate cause, only that they were a proximate cause,” Everly v. Columbia Gas of WVa.

He said a witnesses' epidemiologic definition of causation is contributing to outcome; without which, outcome differs in some respect.

He added the defendants aren't saying plaintiffs haven't proved their case, the def. just argue they are too remote to be culpable

Majestro said that epidemiologic definition says otherwise.

“There’s still an opioid epidemic in Cabell County, so whatever they are doing is not enough. (The current money) being spent is a drop in the bucket compared to what it’s going to take to eradicate the epidemic,” Majestro said.

It's not necessary for the plaintiffs to look at what the city/county are doing, because it is not enough. Most importantly, he said, what is doing now is not being done by the defendants, who caused it.

They want to say because the federal, state governments are taking care of the problem means the city and county shouldn't, but statute stays the local governments have a duty, as well, he said.

Farrell asked the judge to imagine all people affected by the opioid use disorder placed in a pond polluted by multiple sources; community members, past and present prescription and illicit opioid users, governments, etc.

A company could be forced to clean the pond, but it would also screen out the pollutants dumped by others.

“It doesn't negative the fact the treatment facility is needed to begin with to treat this condition," he said.

The plaintiffs are done. Taking a break and coming back for rebuttal.

We are done for the day and will return tomorrow with the defenses’ first witness.

Oh…I guess I left out the part where Judge Faber said he would rule on the motion at a later date.

FINAL STORY: A sharp statement by Judge David A. Faber, the cases’ decider, set the tone at the beginning of Thursday’s arguments, begging the question if the public nuisance law was broad enough to address the plaintiffs’ cause of action. herald-dispatch.com/news/cabell-co…