Thread by @funchefchick

#WAOpioidTrial Day 45 of State of WA v McKesson, et al is beginning at this link for the AM session. Note that this is the last day of the trial week; no trial on Fridays. Next scheduled trial date is Monday, 3/28/2022 at 9am.

Defense resumes this AM.

#WAOpioidTrial Current housekeeping measure under discussion about how to recall DEA's Rannazzisi - state intends to recall him via Zoom to rebut, but no one seems clear on that. Defense is predicting wrapping up their case Monday or Tuesday . . maybe.

#WAOpioidTrial It's complicated because there are THREE defendants here - much of their case is similar/unified, but there are specifics for each company which take time. Timing and estimates for how long witnesses and depos will take .. it's complex.

#WAOpioidTrial Judge is currently reminding the state that he is a stickler for Scope, so IF the state is planning a rebuttal case THEY HAD BETTER STICK TO WITHIN THE SCOPE of what's been presented and not try to introduce new stuff.

🤔

👀

#WAOpioidTrial And with that, defense calls their next IRL witness: Economist Peter Boberg. Looks like he also testified in the West Virginia trial; Georgia; Ohio.

He's a super big data analyst nerd for economics, mainly in anti-trust type stuff.

crai.com/our-people/pet…

#WAOpioidTrial He's been considered by previous courts an expert in "Econometrics and large data sets".

Sidebar: Deep respect for people's brains who can handle the analysis of large data sets and whatever else those words like 'econometrics' means. Because: mind don't! 😬

#WAOpioidTrial He's here to comment on the earlier ARCOS data analysis, and specifically the analysis done in earlier trials by Dr. McCann, and in this trial by state's expert Lacey Keller.

Looks like McCann's analysis was questioned previously.

wchstv.com/news/local/big…

#WAOpioidTrial Heh. Defense pulls up a graph of McKesson's distribution of controlled AND non-controlled substances in WA from 2006-2018.

The distribution of the 14 types of opioids remained relatively flat over time. Meanwhile non-controlled increased - by a lot. A LOT.

#WAOpioidTrial Today's witness used McKesson's actual transaction data for his analysis.

Lacey Keller used 'processed' ARCOS data. Not the actual transaction data. Also she only looked at what the state told her to, which she made clear on the stand.🤔

https://twitter.com/funchefchick/status/1468996634310701059?s=20&t=YwrcLTsFwae3HhhS5lJ8AA

#WAOpioidTrial HEH. Remember how I keep saying there's only a FEW pharmacies we keep hearing over and OVER again? It's 5, actually.

Defense asks the witness: what % of OxyCodone was distributed in WA to pharmacies/buyers OTHER than those 5 in WA by McK 2006-2018? It's 98.3%.

#WAOpioidTrial Same question for McKesson re: distribution of Hydrodcodone for ALL OTHER buyers in WA excluding those 5 pharmacies from 2006-2018.

For Hydocodone 98.1% went to ALL OTHER pharmacies/hospitals over those years. Literally the 5 each got 0.2-0.6% over those years.

#WAOpioidTrial For reference: state called out these 'problematic' 5 pharmacies as 'representative of the defendants' lack of maintaining effective controls against diversion'. But they were not representative; they were outliers.

Even so: TEENY amounts distributed in context.

#WAOpioidTrial AND ALSO: Every single one of those 5 pharmacies was licensed by DEA as well as the Pharmacy Quality Assurance Board of WA state.

And not one RX was dispensed by them without a valid prescription from a physician or ARNP.

I still can't believe this trial. 🤦🏽‍♀️⁉️

#WAOpioidTrial Court has been arguing about the admittance of witness analysis of all 14 opioids dispensed; state got it excluded because it didn't directly rebut Keller's data.

Defense is trying again with a new chart of ARCOS data. Judge overrules state's objection this time.

#WAOpioidTrial After state continues to argue to exclude -

Judge: I granted some leeway to state on Ms. Keller's examination; I'm going to grant similar leeway to this witness in rebutting it.

Yep. State is unhappy, but once again: Judge seems thoughtful and fair here.

#WAOpioidTrial Defense introduced a bar graph of 'Hydrocodone Dosage Units Distributed by McKesson to Tick Klock Drugs' from Dec. 2013-Jan 2014.

Holy shit. And compares it to Keller's CUMULATIVE chart of same pharmacy, same timeframe.

They are night and day difference. 🤯

#WAOpioidTrial And now defense has pulled up same chart but including the distribution of non-controlled meds distributed to that pharmacy as well.

THEY SHIPPED TONS OF ALL KINDS OF MEDS.

Controls were a tiny piece. It's such a different picture than state painted. Compelling.

#WAOpioidTrial State objects to defense questioning the witness about Threshold Change Requests - as it was not included in his reliance materials. Defense points out that Ruth Carter testified about 'routine threshold increases' on the stand and as such, it's proper rebuttal.

#WAOpioidTrial Judge overrules the objection, but state doubles down and tries to argue it some more. Judge maintains his ruling.

After one more question - state's counsel interrupts to ask for standing objection, which is granted.

The testimony they wanted out?

#WAOpioidTrial That threshold change requests to McKesson were authorized around 1/3 of the time. So 2/3rd of the time, they were denied.

Which is FAR different than Ruth Carter's 'regularly approved' portrayal.

It's almost like the DEA experts are biased, you guys. 🫢

#WAOpioidTrial Defense tries to introduce a new chart to rebut Keller's data - but state wins their objection and the Judge excludes it as a 'new opinion'.

It happens. Defense moves on to look at Keller's revenue numbers.

#WAOpioidTrial For those of you just joining, back in December state's expert Lacey Keller showed gross revenue numbers for the 14 RX opioids in WA for all 3 defendants.

But. It was gross revenue; not net profit.

https://twitter.com/funchefchick/status/1468704435375198214?s=20&t=YwrcLTsFwae3HhhS5lJ8AA

#WAOpioidTrial Today's witness accounts for operating expenses, rebates, etc.

So instead of a big number over 13 years for McKesson (just over $1 billion) the actual profits from RX opioids are: $16 million. Over 13 years.

🤣

It's almost like state misportrayed it on purpose.

#WAOpioidTrial Defense took Ms. Keller's big bar chart of 'Estimated Profit Associated with Distribution of 14 opioids in WA 2006-2018' and then put ACTUAL net profit for each year up against it . .. and it's a laughable comparison. Defense tendered the witness; now on break.

#WAOpioidTrial I'm working on a fun sketch, but in the meantime: we're back from break. State is asking questions like: You didn't consider suspicious order reports in your analysis?

Witness: No, I'm a goshdang economist, so obviously not relevant.

(I paraphrased) 🙂

#WAOpioidTrial State (on cross): You're not a medical doctor or a regulatory compliance expert and you haven't worked for a wholesale pharmaceutical distributor or pharmacy district?

Witness: No. I'm a goshdang economist. OBVIOUSLY.

(I paraphrased again)

#WAOpioidTrial Okay! I sketched the gross vs. net revenue chart. Paused it during the break.

BLUE is what state's witness portrayed as how much McKesson profited from sales of opioids in WA.

Orange is estimated ACTUAL gross profit.
GREEN is net.

https://twitter.com/funchefchick/status/1506683320632942593?s=20&t=YwrcLTsFwae3HhhS5lJ8AA

#WAOpioidTrial What's that? You can't see the green bars?

Correct. Because they are teeny. And not just in my artist rendering.

For example: in 2018 Keller reported McKesson made nearly $90 million, gross. McKesson's operating profit (as reported by them for 2018): $1.3 mil.

#WAOpioidTrial In retrospect I could have whipped that out in Excel much faster, but - being extra respectful of the court order not to record, I sketched it out in sharpie marker instead. ! 😇

Anyway. State certainly portrayed it MUCH differently.

#WAOpioidTrial State's questioning the witness' 'grouping of 14 opioids' in his reports. He's listed all controlled opioid meds together to comprehensively articulate McK's C2 sales.

Whereas state's expert seemed to focus on only 2. Outliers? Not representative? Yet again?

#WAOpioidTrial State is now asking the witness WHY he only looked at those five pharmacies. (It's because that's what state's witness did). As if it's somehow suspicious.

Defense objects, Judge sustains. State tries to argue. Judge maintains his ruling. (We do this a lot)

#WAOpioidTrial I'm kind of zoning out here; state is trying to limit the damage from this witness. While acknowledging that I am totally biased: it's not effective.

This is a proper economist who did thorough research and effectively rebutted the state's witness. Suck it.

#WAOpioidTrial BWA HAHAHAH state just asked defense's witness if he ever spoke with Ms. Keller. He had not.

YOU KNOW WHO ELSE HAD NOT? ANY OTHER state's experts! Which is why much of (DEA) Ruth Carter's testimony was stricken from the record!

https://twitter.com/funchefchick/status/1490745451863175172?s=20&t=YwrcLTsFwae3HhhS5lJ8AA

#WAOpioidTrial Anyway state wrapped up shortly after that; I wasn't really listening so I dunno if I missed anything. Defense asked one question on redirect, and the witness has been excused.

Defense resumes playing the video depo of Dr. George Heye.

https://twitter.com/funchefchick/status/1504582515192786975?s=20&t=YwrcLTsFwae3HhhS5lJ8AA

#WAOpioidTrial In the depo defense asking Dr. Heye about the specifics of the Fishman book - which was sponsored not only by FSMB, but also by SAMHSA. D'oh.

By which I mean: lends even more credibility to that book, which state tried to dismiss if I recall correctly.

#WAOpioidTrial "Responsible Opioid Prescribing" written by Dr. Scott M. Fishman in 2007 contains the following:

"Pseudoaddiction: <..> the misinterpretation of relief seeking behaviors as though they are drug-seeking behaviors that are commonly seen with addiction."

Yep.

#WAOpioidTrial It continues: 'The relief seeking behaviors resolve upon institution of effective analgesic therapy.'

Many advocates have been saying for some time: chronic pain patients are NOT drug-seeking.

They are pain-relief seeking. There's a vast difference.

#WAOpioidTrial AND they finished the video deposition of Dr. Heye - with state attempting a few more objections to prevent his opinion from going on the record - but failing.

And that's lunch, folks! Back at 1:30PM PT with a new trial link.

#WAOpioidTrial State of WA v McKesson, et al day 45 continues at this link for the afternoon.

Interestingly ABDC and McKesson are moving into evidence the ACTIVE DEA licenses of the 5 pharmacies which Ruth Carter and Lacey Keller highlighted. Heh.

#WAOpioidTrial State's experts highlighted these 5 pharmacies as egregious examples of lack of due diligence by the defense.

But the state of WA and the DEA both continued to license them.

State is fighting this evidence going in.

#WAOpioidTrial Heh. State objected because defense pulled the licenses last week; short notice. Defense points out they submitted these licenses last September, they refreshed them this week to ensure there were no issues since.

State called one of them an 'active pill mill'

#WAOpioidTrial After some discussion, Judge overrules state's objections and says he'll consider the weight of the evidence.

So .. they are IN, on the record. Sorry, State.

(Not sorry.)

#WAOpioidTrial Defense (Cardinal) calls their next witness: video deposition of Michael Langer, Deputy Director of the Division of Behavioral Health and Recovery within the Health Care Authority in Washington State.

let's see what's what.

#WAOpioidTrial Health Care Authority is the agency which manages Medicaid in WA state.

Apparently defense is going to ask about the state's proposed Abatement Plan which is ..VERY broad, and would force the defendants to pay for basically any people who develop OUD in future.🤔

#WAOpioidTrial State objects to all of this questioning (before we've even heard it) and a discussion ensues.

Judge overrules state's objection and says he will consider the weight (again).

State requests a standing objection and Judge grants it.

It's a trend.

#WAOpioidTrial <in depo, to witness> During this time between 1986 and 2004 did you oversee any prevention programs relating to prescription opioids?

Witness: No.

#WAOpioidTrial Were you aware of problems with prescription opioids?

Witness: No. Young people would start using alcohol, tobacco, and marijuana. They were not using RX or harder drugs. Alcohol, tobacco, and marijuana were the gateway drugs.

OIC. 🤔

#WAOpioidTrial Q: So you focused on alcohol and tobacco and marijuana because in your experience young people didn't just begin abusing prescription opioid medications without having previously experimented with alcohol marijuana and tobacco, correct?

Witness: Yeah.

(Nodding)

#WAOpioidTrial BTW State SUPER objected but defense pointed out: He was the prevention program manager for state of WA during this time focused on substance abuse issues. Certainly the state was free to examine him if they wanted to elicit alternative observations or opinions.

#WAOpioidTrial Oh also - the HCA also oversees healthcare for all public employees in WA state including state government employees, school employees, retirees of both, etc.

The HCA oversees the healthcare of the majority of WA state.

hca.wa.gov

#WAOpioidTrial Witness is outlining some of the many programs which are covered by Medicaid vouchers for people in recovery for SUDs, including: housing vouchers. Travel vouchers. Vocational training for unemployed individuals.

TBH sounds good but is probably not enough.

#WAOpioidTrial Defense asks if their working group ever discussed funding for: opioid-related HIV. Opioid-related Hep C (HCV). Opioid-related endocarditis.

He doesn't recall.

I *believe* these things are included in State's VERY broad Abatement plan.

Point being: IS BROAD.

#WAOpioidTrial I'll remind you: The Abatement plan State's asking for would require the defendants to cover SUDs treatment for WA residents in the FUTURE who start using heroin who never even took an RX pill.

The defendants don't distribute heroin.

It makes no damn sense.

#WAOpioidTrial And it isn't just me (and the defense counsel) who think so. Ahem.

The Judge was pretty clear back on March 8th that the State's proposed plan was closer to a damages claim, not public nuisance.

The "plan" is too aggressive. 🤷🏽‍♀️

https://twitter.com/funchefchick/status/1501281776748019712?s=20&t=YwrcLTsFwae3HhhS5lJ8AA

#WAOpioidTrial Oh good, mid-PM break. I need a cookie.

The video depo was talking budget reports and making me sleepy.

Probably really important and all but . . ..

🥱

#WAOpioidTrial We are back. Witness is asked if he is aware of any instance in which an individual with OUD who wanted treatment was turned away due to lack of funding.

After state objects (and is overruled): He says no, he can't think of one. Unless not on Medicaid.

#WAOpioidTrial Witness says in WA a patient can get Suboxone from a provider without having to go through counseling.

It's MAT - Medication Assisted Treatment - but without a therapy requirement.

So MOUD - Medications for Opioid Use Disorder.

pcssnow.org/medications-fo…

'SAMHSA recommends replacing the term “Medication Assisted Treatment (MAT)” with “Medications for Opioid use Disorder (MOUD).” The term MAT implies that meds play a secondary role to other approaches while the term MOUD reinforces the idea that meds is its own treatment form.'

#WAOpioidTrial Witness is asked if there are people with OUD in WA state who are not ready to enter treatment.

State objects, again. Judge overrules, again.

Witness states there are myriad reasons why people are not ready for treatment and explains a few.

Yep.

#WAOpioidTrial Defense pulls up an email between the witness and Gov Inslee's top healthcare advisor from 2017.

(I know bc I met with that advisor as a patient advocate in 2018 to ask him to ensure the governor's language included chronic pain patients. And they did! And do!)❤️

#WAOpioidTrial Anyway in the email witness explains to Governor's healthcare person that 90% of adult Substance Use Disorder patients are on Medicaid.

Which further illustrates that the Abatement plan would stomp on programs already in place.

Not to say more funding isn't good

#WAOpioidTrial More resources for SUDs is good.

But forcing wholesale (legal!) pharmaceutical distributors to pay for recovery for ALL kinds of SUDs now and in the future is just plain nuts.

And it's not just me (and defense counsel) saying so.

#WAOpioidTrial “There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need,” Wilson wrote in a ruling of more than 40 pages."

California.

apnews.com/article/health…

#WAOpioidTrial Oklahoma.

abcnews.go.com/Health/wireSto…

#WAOpioidTrial Defense continues to show the witness (in the depo) various budget details and slide presentations about grants the HCA received to deal with the opioid crisis in WA state.

It's millions. Two of the grants combined amounted to roughly $120 million over 2 years.

#WAOpioidTrial To be clear some of that grant money was for SUDs treatment which was NOT opioids - so targeted towards alcohol and meth and other substances.

#WAOpioidTrial Defense is done with that depo, now Cardinal's counsel is calling up another recorded deposition because as our efficiency-loving Judge just said: "We have only 15 minutes left, but they are 15 GOOD minutes, so have we got a depo to play or what?"

Paraphrasing. 🤣

#WAOpioidTrial Cardinal's counsel calls up a record video depo from Kirk Hynes, local WA Pharmacist and the owner of 3 pharmacy locations, each of which is licensed by the DEA to distribute controlled substances.

Apparently his stores have been robbed of RX opioids in the past.

#WAOpioidTrial The person doing the questioning in the video is Ackerman, state's counsel from Motley Rice. He's lead counsel in the courtroom for state as well.

But he's getting answers which do not help state's case so far. Which is prolly why defense entered this depo.

#WAOpioidTrial State: Do you believe that the wholesalers play a role in preventing diversion of opioids?

Witness: I don't. I don't think that they have that role. Since the pharmacy and the physician have the relationship of taking care of their patients.

#WAOpioidTrial Witness: I mean the no, I don't think they (distributors) have that that role. I mean it's us ordering the medication; they're there to provide that medication to us.

(SIDEBAR: Pssst. Which the pharmacy does not dispense without a valid prescription. Yeah.)

#WAOpioidTrial State was asking the witness about the DEA reporting requirements for when a pharmacy is robbed of controlled substances.

Not really earth-shattering stuff so far. And then we ran out the clock!

#WAOpioidTrial So ends day 45 of WA v McKesson, et al. Defense outlines their plan for tomorrow: live witness first, then finishing this recorded depo, then some others as time permits.

I'll be back tomorrow at 9am for day 46 if I can remember what day it is/where I am. 😬 Ciao!