The Robert C. Byrd United States Courthouse in Charleston. Photo by F. Brian Ferguson

It was an important piece of evidence — a 324-page congressional report that slammed the nation’s largest prescription drug distributors for their role in fueling the opioid crisis. 

But a federal judge blocked the scathing report from being presented during a seven-week trial that pitted Cabell County and the City of Huntington against drug wholesalers McKesson, Cardinal Health and AmerisourceBergen.

The December 2018 report was part of an 18-month bipartisan investigation into pill dumping in West Virginia. A U.S. House committee cited the “Big Three” distributors for systemic “failures that contributed to the worsening opioid epidemic” by delivering an “inordinate” number of prescription painkillers to the state

During the recent trial, U.S. District Judge David Faber sided with the companies’ attorneys who argued that the congressional report —  issued by the House Energy and Commerce Committee — was “inherently political.” 

The decision contradicted a previous ruling by a federal judge in Cleveland who’s presiding over thousands of lawsuits against the pharmaceutical distributors.

Faber is expected to decide in the coming weeks whether the drug distributors should be held accountable and pay for their alleged misconduct. The non-jury trial started in May and ended in July.

Faber’s ruling to bar the congressional report from the trial was a significant blow to the plaintiffs’ lawyers. They couldn’t question witnesses about it. They couldn’t present the report’s findings or the more than 900 pages of supporting documents.

The city and county were also prohibited from presenting past testimony from former Cardinal Health CEO George Barrett, who publicly apologized in May 2018 for the company’s massive opioid shipments to two pharmacies in Southern West Virginia. Barrett spoke at a congressional hearing amid the federal investigation.

“To the people of West Virginia, I want to express my personal regret for judgments that we’d make differently today,” Barrett told federal lawmakers. “…With the benefit of hindsight, I wished we had moved faster and asked a different set of questions. I’m deeply sorry, we did not.”

The congressional report concludes that the wholesale drug distributors missed “numerous warning signs and red flags” that their prescription painkillers were being diverted for illegal use. 

Some examples:

  • In just 10 months, McKesson shipped 3 million opioids — nearly 10,000 pills a day to a single pharmacy in Kermit, a Mingo County town with only 400 residents. The shipments continued even after an employee at the company’s Ohio warehouse reported the questionable orders. McKesson reported to the Drug Enforcement Administration that the purchases were “reasonable.”
  • Distributors’ deliveries frequently spiked from one month to the next. In just two weeks, Cardinal Health’s sales to a drugstore in Williamson jumped 1,500%.
  • In 2011, AmerisourceBergen, which shipped to Westside Pharmacy in Oceana, was given a list of “pain doctors” who were writing the majority of the Wyoming County store’s prescriptions. Five of the six were subsequently convicted of federal charges or were under federal investigation. One doctor was located in Pembroke, Virginia, 100 miles away. Another doctor was in Washington, D.C. Westside’s pharmacist/owner, Devonna Miller-West, was indicted in 2019 on charges she conspired to distribute painkillers illegally. Her trial is scheduled to start Jan. 5, 2022. 

Report allowed in one courtroom, excluded in another

The drug distributors made their first push to exclude the congressional report in September 2019. McKesson’s attorneys asked U.S. District Judge Dan Polster to prohibit the report and any related letters and testimony. Polster is overseeing more than 2,000 lawsuits against the distributors that have been consolidated in federal court in Cleveland. 

McKesson argued that the House panel’s investigation and findings were “irrelevant and prejudicial.” The company predicted that a jury would give the report “undue weight” because of its “official nature and appearance.”

Polster disagreed. He rejected McKesson’s request, calling the congressional report “relevant and admissible.”

But in May, the distributors — McKesson, joined by Cardinal Health and AmerisourceBergen — got another chance to keep the report out of another courtroom. Days before the trial started in West Virginia, the companies aimed to bolster their argument with allegations that attorneys for Huntington and Cabell County met privately with House staff during the congressional investigation, trying to steer the report so it would add fuel to their lawsuits. 

At the closed-door meeting, attorneys Mike Papantonio and Archie Lamb gave an “inflammatory” PowerPoint presentation that included a slide with photos of the distributors’ executives surrounded by a chart comparing the number of opioid-caused deaths to the number of fatalities during the Vietnam War, the companies allege in a court filing.

Papantonio and Lamb also gave committee staff a list of potential questions for House members to ask the distributors’ top executives during a hearing on Capitol Hill, court records show.

“Plaintiffs’ counsel’s fingerprints — and specifically those of counsel of record in this case — are on the committee’s investigation,” the companies’ lawyers told Judge Faber in May.

At least one congressman, U.S. Rep. David McKinley, R-W.Va., forwarded the proposed questions to distributors after the hearing. McKinley didn’t ask those scripted questions — seven in all — during the hearing. Instead, he assailed the drug company CEOs that day, insinuating they should face criminal charges.

In response to the distributors’ request to exclude the congressional report from the trial, lawyers for Huntington and Cabell County alleged that the companies’ attorneys also met with the House committee’s staff before the hearing and tried to influence the investigation. Those lawyers provided their own set of potential questions to ask the executives.

Huntington and Cabell County’s attorneys had argued the report wasn’t political. The House committee issued a series of press releases about the investigation, calling it “bipartisan.”

In 2018, Republicans controlled the House and its committees. The House panel’s staff members prepared the report. Two weeks after its release, Democrats gained control of Congress.  

The city and county also noted that Polster already had rejected the distributors’ request to withhold the report, and urged Faber to do the same. Polster said his ruling should apply to lawsuits sent back to federal courts in the states where they were initially filed, such as the Huntington-Cabell County case in West Virginia.

But Faber didn’t follow Polster’s ruling. 

Faber allowed numerous other federal reports to be admitted into evidence during the trial, but not the one that targeted distributors, saying he had a “big problem” with the House panel report.

“I’m not going to admit it,” Faber said the morning of May 18 during the landmark opioid trial. “I believe that it lacks sufficient reliability and objectivity to be admissible, and it is out.”

The drug distributors have agreed to pay $21 billion to settle thousands of lawsuits with states, cities, counties and towns across the country. Forty-two states have signed on.

Local governments in West Virginia opted out of the national settlement, saying the state’s potential portion of the national deal — an estimated $400 million — wasn’t enough. Cabell County and Huntington alone are seeking more than $2 billion from the distributors. Cabell County has one of the highest drug overdose death rates in the nation. 

While awaiting Faber’s ruling, the two sides have continued settlement talks. 

Other evidence excluded

The congressional report wasn’t the only piece of written evidence that Faber wouldn’t admit during the trial. 

The judge also excluded two email chains circulated by AmersourceBergen employees that joked about the opioid crisis. But he did allow other emails, such as one that included a parody song about “pillbillies” addicted to OxyContin to be entered and used to question an AmerisourceBergen executive who testified under oath in May.

One of the excluded emails, which was previously reported by Mountain State Spotlight, made fun of Kentuckians. In response to an email detailing Kentucky’s new opioid regulations in 2012, an AmerisourceBergen executive wrote, “One of the hillbilly’s [sic] must have learned how to read :-)” 

“I’m not sure how much this proves,” Faber said before ruling the email was inadmissible. “People break the stress of their jobs by humor, and this might be tasteless, but I suppose it is relevant to the company’s attitude.”

At the drug companies’ request, Faber also excluded an AmerisourceBergen email chain in 2012 that made light of Purdue Pharma wanting FDA approval to label OxyContin for kids as young as 6 years old.

In response to the news, execs at AmerisourceBergen, one of the largest shippers of OxyContin in the U.S., shared an email with a parody photo of a Kellogg’s Honey Smacks cereal box that read, “Killogg’s Smack,” referring to a slang term for heroin.

In the email chain, one AmerisourceBergen employee joked, “I suppose we’ll need another threshold for Oxy 20s for kids.”

Another employee responded to the Honey Smacks/Dig ‘Em the Frog parody: “You’re just a barrel of laughs today…Perhaps too much sun this weekend?”

During the trial, AmerisourceBergen’s lawyer urged Faber to exclude the email chain because of “the soundbite prejudice aspect of it.”

The judge ruled in the company’s favor.

Weeks later, a New York judge, who was overseeing lawsuits filed against the distributors by two counties on Long Island, allowed the counties’ lawyers to present the same two AmerisourceBergen email chains as evidence at a jury trial. 

Within days, the companies agreed to pay $1.1 billion to settle the lawsuits with the counties in New York.

Eric Eyre, who was awarded the Pulitzer Prize in Investigative Reporting in 2017 for stories on the opioid crisis, is a senior investigative reporter at Mountain State Spotlight. He is the author of Death...