Drug distributors rest their case in West Virginia opioid trial

This article was originally published by Mountain State Spotlight.

After only five days of testimony, lawyers representing the country’s three largest drug distributors rested their defense in the landmark opioid trial taking place in federal court in West Virginia. 

After attempting to shift the blame to multiple other parties, from the drug manufacturers to the doctors prescribing the bills, the distributors’ final expert witness questioned the nature of a supposed opioid epidemic altogether.

Stephenie Colston, who has professionally managed treatment programs and overseen the distribution of federal funds to state and local governments combating opioid and substance abuse disorders, argued that instead of an individual opioid crisis, the country has long been facing “a series of crises that shifts from drug to drug.” Colston cited recent data from the West Virginia Department of Health and Human Resources  that show an uptick in methamphetamine overdoses to prove her point.

“Pointing the finger at any one of those substances is not quite what I conceive as accurate,” she said.

But when Huntington lawyer Paul Farrell asked Colston whether the multi-drug abuse problem significantly interfered with the public’s health in Cabell County, she responded, “Absolutely.”  

Colston’s testimony went a step further than previous defense witnesses, who echoed the companies’ argument that doctors triggered the addiction crisis because they prescribed too many pain pills.

The Cabell County Commission and City of Huntington are suing the “big three” prescription drug distributors — McKesson, Cardinal Health and AmerisourceBergen — alleging they fueled the opioid epidemic by flooding the area with powerful painkillers such as OxyContin.

But the distributors’ witnesses have testified that a huge spike in opioid prescriptions started and fueled the crisis. They say demand drove the supply: the number of pain pills prescribed matches the number of pills dispensed by pharmacies and shipped by distributors. 

The distributors called on witnesses who testified that the surge in opioid prescriptions in the late 1990s and 2000s followed a nationwide change in the “standard of care” for treating people in pain. Doctors were being encouraged to prescribe painkillers by Purdue Pharma, makers of OxyContin.

“Many physicians adopted the philosophy that you upped the dose of opioids until someone got better,” said Dr. Tim Deer, a Charleston-based pain specialist who testified on behalf of the distributors at the trial last week. “And there was no ceiling.”

In the late 1990s, Deer was paid by Purdue Pharma to speak at events across the state, including in Charleston and Huntington, he acknowledged during his testimony. At the time, Purdue was marketing OxyContin as a non-addictive medicine to treat patients with chronic pain. Deer said he received up to $1,000 for each lecture but didn’t use the company’s promotional materials during his presentations.

“That was an issue with them a bit,” he said.

Deer said he severed ties with Purdue several years later after some of the drugmaker’s other speakers said it was safe to prescribe OxyContin to alcoholics.

“I felt that was totally crazy,” Deer said. “Every bit of information says that’s wrong.”

But that didn’t stop others from jumping on the painkiller bandwagon — even groups that were expected to protect patients’ health. 

The West Virginia Board of Medicine, which licenses doctors, distributed policy statements in 1997, 2005 and 2013 that supported prescribing opioids and directed doctors to treat pain aggressively — and assured them they wouldn’t be sanctioned if they did. In 2008, the board also sent copies of a book to doctors statewide that recommended using prescription opioids as the first and best option for patients with chronic pain.

Throughout the trial, lawyers representing Huntington and Cabell County have said the oversupply of prescription opioids led to pain pills being diverted to the black market, which caused an increase in drug overdose deaths. West Virginia has the highest fatal overdose rate in the nation. 

The drug distributors have presented witnesses who have testified that once painkillers are prescribed by doctors and dispensed by pharmacies, the companies no longer have any control over them. 

The city and county’s lawyers allege that people addicted to prescription opioids transitioned to heroin use a decade ago after the state started to crack down on so-called pain management clinics, and state lawmakers passed measures that aimed to curb painkiller prescriptions.

The drug wholesalers’ lawyers dispute the notion that prescription pain pills served as a gateway to heroin use. The companies’ attorneys also have repeatedly argued that the distributors are too far removed from the misuse of opioids to be held accountable.

“[Cabell County and Huntington] say that misuse leads to later illegal drug use,” said Tim Hester, who represents McKesson. “Well, that involves a crime of misuse of the prescription opioids followed by a crime involving drug trafficking followed by a crime involving drug dealing followed by a crime involving drug purchasers, drug users, intravenous drug users and others who illegally acquire the drugs.”

The defense also tried to make the point that Cabell County and Huntington are suing the distributors for enormous sums, while West Virginia holds millions of unspent federal dollars intended to curb the opioid crisis. According to a 2020 report released by the U.S. Department of Health and Human Services’ Office of the Inspector General, West Virginia spent only 34% of $12 million awarded to them by DHHS in 2018 and 2019 — a lower percentage than any other state.

Lawyers from both sides will return to the federal courtroom in Charleston on July 27 to deliver closing arguments. U.S. District Judge David Faber is expected to decide the case in the weeks that follow.