White pills ready to be counted

Landmark trial over the opioid crisis is set to start next week at ground zero

This article was originally published by the Washington Post.

Correction: An earlier version of this story incorrectly reported that a judge ordered Johnson & Johnson to pay $572 million. The judge made a math error in 2019 and corrected the total to $465 million. This version has the accurate total.

For decades, the United States’ rural towns and counties have endured the brunt of the opioid epidemic that has claimed more than 400,000 lives and left millions of people addicted.

A small West Virginia community — considered ground zero of this national catastrophe — is set to begin the first federal trial on Monday over one of the worst public health crises in the nation’s history. Cabell County and its seat, Huntington, will test a legal claim made by thousands of cities, counties, Native American tribes and other plaintiffs that drug companies ignored red flags and flooded their communities with addictive pain pills, causing a “public nuisance” and fueling an epidemic of substance abuse, overdoses and deaths.

The landmark trial in West Virginia against drug distributors known as the “Big Three” — AmerisourceBergen, Cardinal Health and McKesson — comes after an 11th-hour settlement averted an Ohio trial in October 2019 and coronavirus-related delays stalled opioid cases across the country.

It’s described as the country’s most complex civil case, and thousands of local governments and jurisdictions are arguing that the companies had a responsibility to ensure that the billions of pain pills pumped into their communities were not diverted for illegal use. The distributors say they complied with the law, delivering drugs approved by the government to pharmacies.

Ahead of the widely anticipated courtroom battle, here is a look at what the case is about and what is at stake.

Why is the trial in West Virginia?

The first federal trial against drug companies was supposed to happen in a different state.

In 2019, hours before opening arguments in a Cleveland courtroom, where the sprawling litigation was mostly consolidated before a federal judge, the distributors and manufacturer Teva Pharmaceuticals settled with cash-strapped Cuyahoga and Summit counties for $260 million.

A year and a half later, Cabell County, which filed its lawsuit in 2017, will argue that the drug distributors failed to refuse and report suspicious orders as the county was inundated with opioids.

From 2006 to 2014, there were more than 81 million prescription hydrocodone and oxycodone pills distributed in the county, enough for 94 pills per person per year. The epidemic fueled by the influx of pain pills has devastated families, spiked crime rates and strained the community’s finite resources, including first responders and foster homes, according to plaintiffs. During the height of the crisis, the West Virginia county had a higher overdose death rate than the opioid-ravaged state.

Attorneys representing Cabell County and Huntington are seeking $500 million from the three companies for recovery efforts to abate the crisis and to offer resources to those who were most affected. The verdict of this trial could lay the groundwork for settlements in other jurisdictions.

“It’s an important trial, not just for the citizens of Cabell County, but for all of the communities across the country who have opioid cases,” said Anthony Majestro, one of the attorneys representing the West Virginia community.

Coronavirus-related delays have stalled the case, and Majestro, who is from the area, said people have long awaited their day in court. Experts believe overdose deaths surged during the pandemic.

“If anything, covid has made the opioid epidemic worse as the statistics will bear that out,” Majestro said. “Hopefully, this will be the first step in finding permanent solutions to the problems the opioid crisis has caused.”

Because of the pandemic, the trial will look much different. There will be a limited capacity in the courtroom and an overflow space for the media and members of the public.

Who are the companies going to court?

While the drug distributors may not be household names, the three are considered among the largest and have the deepest pockets.

Combined, they shared nearly half of the pain-pill market from 2006 to 2014.

The number of companies facing lawsuits has fallen as some have settled. Purdue Pharma, one of the largest manufacturers during the peak of the crisis, filed for bankruptcy in September 2019, halting scores of court cases against the maker of OxyContin.

The firms have blamed the epidemic on overprescribing doctors, inattentive pharmacies and drug-abusing customers.

The distributors “do not control the supply of prescription opioids made available to patients in Cabell/Huntington and are not responsible for second-guessing the good-faith prescribing decisions of doctors in Cabell/Huntington,” the companies’ attorneys wrote.

What will happen at the trial?

The trial before Judge David A. Faber of the U.S. District Court in the Southern District of West Virginia is set to begin Monday at 9:30 a.m. and continue for more than a dozen weeks.

A live stream will not be available.

The plaintiffs are expected to call witnesses, including local leaders, experts on the opioid crisis and people who were personally affected by substance abuse.

There’s little precedent for such a trial. Aside from a bench trial that began last week in a California county court via Zoom, there’s only been one other trial over the opioid crisis.

In a 2019 trial in Cleveland County District Court, Oklahoma won against Johnson & Johnson and its subsidiaries, holding the drugmaker culpable for the crisis in the state. The company was ordered to pay $465 million after other defendants, Purdue Pharma and Teva Pharmaceuticals, settled.