Thread by @funchefchick

#WAOpioidTrial Day 18 has begun this morning! As suspected the unscheduled trial break was because one of the key players got COVID. It was the judge!😳 He's back now.

State has resumed their redirect of their witness, former DEA Ruth Carter.

AM link:

#WAOpioidTrial We're spending a ton of time looking at distributor reports from 2008 (and such) about percentage of controlled substances ordered by specific pharmacies. With zero context about the population(s) those locations served, proximity to cancer centers, surgery, etc.

It's not possible to call something a "red flag" w/o having that context. State's argument is distributors should've flagged all kinds of things w/o guidance, regulatory requirements etc.

Also that RX opioids caused the overdose crisis. Which they didn't. painnewsnetwork.org/stories/2021/1…

#WAOpioidTrial

Former DEA Ruth Carter: "To reiterate: the slides I made had bullet points but they didn't reflect things .. which had changed.."

Right. You made slides for the state which portrayed only SOME of the facts, to make the defense look bad. For $2million.

Got it.

#WAOpioidTrial Gnarly legal debate about the admissibility of a DOJ settlement letter with McKesson from 2014 ... after much back and forth, the judge allows it.

Interestingly it's allegedly to rebut something said from 2008? I think? It was a lot to follow.

#WAOpioidTrial State just tried to sneak in new evidence on redirect; defense objects and the judge sustains.

It seems as if state is trying to bring up lots of stuff to "generally rebut this vague feeling of .. ." ?

While I find the law fascinating some of this is tedious.

#WAOpioidTrial state is reviewing individual threshold change requests for pharmacies from 2010 as evidence.

Reminder that DEA had oversight on every manufacturer, distributor, prescriber, pharmacy, and pharmacy order. Every step of the way.

Yet DEA claims zero responsibility.

Even if a distributor could have done better with this process - not ONE rx opioid was dispensed without a medical professional. And a patient requesting it.

AND. RX OPIOIDS DID NOT CAUSE THE 'CRISIS', STILL. lynnwebstermd.com/2019/03/30/ove…

#WAOpioidTrial Aaaand we're adjourned for the lunch break.

Lots more of state trying to get documents admitted to help rebut things, lots of decisions going both ways. It's a lot. My respect for court staff and counsel has increased immensely. Back in 90 minutes!

#WAOpioidTrial And we are back. Here's this afternoon's link.

We resume with a legal argument about a Touhy request made by defense, which apparently was denied by DOJ ... let's watch.

For those of us not lawyers - this is a Touhy Request:

"Getting Documents and Testimony from the United States When it is Not a Party to the Case"

vba.org/blogpost/13527…

And now we are back to state's redirect of Ruth Carter.

Not for nothing ... but state was supposed to keep their redirect to under 5 hours, if I recall correctly. And their redirect started partially on 1/5. Hmm. 👀

#WAOpioidTrial And now we're debating how much of Ms. Carter's work history vs. public record is admissible - and the Judge has had the witness step out while the parties argue it.

This is interesting!

#WAOpioidTrial Ooooh Judge sustains the defense's objection - the witness is not allowed to testify to .. um ... some legal stuff which I'm not going to rewind the feed to capture exactly accurately.

That seem like a big win for the defense, IMHO.

#WAOpioidTrial We've moved on to Ms. Carters *personal opinion* about 'how these companies felt about their responsibilities to maintain effective controls against diversion" - her opinion, to be clear, is NOT the same what as DEA required all those year. Just .. what.

#WAOpioidTrial And state is finally done with redirect. We're moving on to re-cross (or whatever it's called).

Starting with McKesson's counsel.

#WAOpioidTrial Sidebar: We're in a new courtroom today; the King County Judicial system reassigns court assignments annually (it was last week). This is a new room for this trial.

The tech team is battling some WICKED feedback squeal intermittently in this new room. Aieee. 😬

#WAOpioidTrial Whoops I got distracted on a thing, sorry. We moved on to re-cross (?) of Ms. Carter by McKesson's counsel.

At one point he asks her about a letter from DEA's RAN saying "DEA is updating the Diversion Control Manual in 2009, until then use these temporary rules"

Which got me wondering - DID the DEA actually publish a new Diversion Control Manual in 2009? Let's go look.

Here's the current DEA website for Diversion Control, and the list of manuals: deadiversion.usdoj.gov/pubs/manuals/

So like . . . the DEA currently isn't sharing a Diversion Control Manual. It is "currently updating all of the manuals".

But ... surely they DID have manuals there? But when? And when were they pulled?

La la la folks I give you: The Wayback Machine! The DEA *did* have a bunch of manuals shared publicly on this stuff as recently as 2018. This is what was there, then:

web.archive.org/web/2017012016…

The most recently-shared manual for the distributors regarding orders/distribution - if I'm not mistaken - was the ARCOS registrant handbook - most recently published in 1997. Last revised August 1997.

web.archive.org/web/2016123116…

What I find interesting about this is that multiple members of the DEA have stated under oath during various opioid trials about how the distributors (and pharmacies, and manufacturers) SHOULD have known better, should have done better - but it seems like ... maybe .. tbd

Is it possible that these companies were largely complying with all currently-available guidance and regulations at the time?

It's also possible there's guidance which DEA doesn't publicly share - but I dunno.

Seems sketchy to pull all DEA manuals during ongoing litigation?

By which I mean: If the DEA cannot officially declare what regulations must be followed, which best guidance could be followed - can they now state under oath that these companies were not able to read their minds back then? That they didn't instantly evolve processes constantly?

#WAOpioidTrial We're looking at old DEA letters - where they say things like "DEA will no longer accept" <stuff>, which darn well implies that THEY USED TO ACCEPT stuff, right? So anytime prior to that letter, DEA *MAY* have accepted or tolerated certain things.

DEA used to have far looser regs and guidelines 'back in the day'. Which means the distributors were largely on their own about their processes and procedures. Can we now hold the distributors liable for that? I can't imagine how. Bleah.

McKesson to Carter:
"Are you aware of any DEA guidance saying that records should be retained for the life of the customer?"

Carter (who has said REPEATEDLY on the record that distributors SHOULD be keeping records FOREVER): <many words, frankly non-responsive>

McK: re-asks

McKesson: Do you recall saying those exact words (cites date, time, line from the transcript on Jan. 5th of this year)?

Long story short: It has been her OPINION this whole time, but she keeps stating it on the record as if it were a DEA requirement. Which it never was.

#WAOpioidTrial Aaand we're wrapping up for the day. More Ms. Carter re-cross tomorrow, but first a little clarification about handing exhibits to parties and to the sharefile for the official record, looked like a fight but it's been gracefully resolved. And that's it for today!