Case 3:17-cv-01362 Document 1530 Filed 07/04/22 Page 1 of 184 PageID #: 79452
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
`
`
`THE CITY OF HUNTINGTON,
`Plaintiff,
`
`
`v.
`
`AMERISOURCEBERGEN DRUG
`CORPORATION, et al.,
`
`Defendants.
`
`
`
`
`CABELL COUNTY COMMISSION,
`Plaintiff,
`
`
`v.
`
`AMERISOURCEBERGEN DRUG
`CORPORATION, et al.,
`
`Defendants.
`
`
`
`
`
`
`
`
`Civil Action No. 3:17-01362
`
`
`
`Civil Action No. 3:17-01665
`
`FINDINGS OF FACT AND CONCLUSIONS OF LAW
`These two cases are related to thousands of other lawsuits
`
`that have been filed throughout the country in recent years
`relating to the opioid crisis. The Opioid MDL (MDL 2804) was
`created by the Judicial Panel on Multidistrict Litigation (JPML)
`in December of 2017 after the JPML determined that a large
`number of cases should be centralized for pretrial proceedings
`in the Northern District of Ohio to coordinate the resolution of
`these actions. In re Nat’l Prescription Opiate Litig., 290 F.
`
`

`

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`Supp. 3d 1375, 1378 (J.P.M.L. 2017). These two cases,
`designated in the MDL as “Track Two” cases, were remanded to
`this court for further proceedings.
`
`A bench trial was held on May 3, 2021, through July 12,
`2021. Closing arguments were held on July 27 and July 28, 2021.
`Set forth herein are the court’s findings of fact and
`conclusions of law pursuant to Fed. R. Civ. P. 52.
`
`Because this case was tried before the court as a bench
`trial, the court’s findings are presumed to be based on
`admissible evidence. See Fishing Fleet, Inc. v. Trident Ins.,
`598 F.2d 925, 929 (5th Cir. 1979); see also Harris v. Rivera,
`454 U.S. 339, 346 (1981) (“In bench trials, judges routinely
`hear inadmissible evidence that they are presumed to ignore when
`making decisions.”); Chicago Title Ins. v. IMG Exeter Assocs.
`Ltd., 985 F.2d 553, 1993 WL 27392 at *4 (4th Cir. 1993) (“[A]
`judge presiding over a bench trial is presumed to consider only
`relevant, admissible evidence.”) (unpublished). Accordingly,
`the court finds it unnecessary to rule on each separate
`evidentiary objection raised by the parties. The court has
`considered those objections relating to the evidence supporting
`the findings contained herein and, to the extent such objections
`relate to the evidence which the court cites in support of its
`findings, such objections are hereby overruled.
`
`
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`Plaintiffs, a West Virginia city and a West Virginia
`
`county, proceeded in this case on a single cause of action,
`public nuisance, against three wholesale distributors of medical
`products. According to plaintiffs, defendants’ wholesale
`distribution of prescription opioids in Huntington and Cabell
`County created an opioid epidemic, which has caused a public
`nuisance in those localities. Plaintiffs contend that they seek
`relief in the form of abatement of the alleged nuisance.
`
`Though they may disagree as to certain particulars, the
`parties agree that there is an opioid epidemic in the United
`States, as well as the City of Huntington and Cabell County.
`The parties further agree that the epidemic was fueled, at least
`in part, by prescription opioids. As the MDL court described
`it:
`
`It is accurate to describe the opioid epidemic as a
`man-made plague, twenty years in the making. The
`pain, death, and heartache it has wrought cannot be
`overstated. As this Court has previously stated, it
`is hard to find anyone . . . who does not have a
`family member, a friend, a parent of a friend, or a
`child of a friend who has not been affected.
`
`In re Nat’l Prescription Opiate Litig., No. 1:17-MD-2804, 2018
`WL 6628898, at *21 (N.D. Ohio Dec. 19, 2018).
`FINDINGS OF FACT
`
`Background
`I.
`The plaintiffs are The City of Huntington (“City of
`
`Huntington” or “Huntington”), a West Virginia city, and the
`
`
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`County Commission of Cabell County (“Cabell County” or
`“Cabell”), a West Virginia county commission (collectively,
`“plaintiffs” or “Cabell/Huntington”). See Third Amend. Compl.
`¶¶ 26–30 (ECF No. 80). The defendants are AmerisourceBergen
`Drug Corporation (“ABDC”), Cardinal Health, Inc. (“Cardinal
`Health” or “Cardinal”), and McKesson Corporation (“McKesson”)
`(collectively, “defendants”). See id. at ¶¶ 127–30, 133–36,
`140–43.1
`
`
`1 Plaintiffs’ complaint also names as defendants the following
`entities that were severed from this trial but remain part of
`the litigation: Purdue Pharma L.P., Purdue Pharma Inc., The
`Purdue Frederick Company, Inc., Rhodes Pharmaceuticals L.P.,
`Rhodes Technologies, Inc., Richard S. Sackler, M.D., Kathe A.
`Sackler, Jonathan D. Sackler, Mortimer D.A. Sackler, Ilene
`Sackler Lefcourt, Beverly Sackler, Theresa Sackler, David A.
`Sackler, Allergan PLC f/k/a Actavis PLC f/k/a Allergan Inc.,
`Allergan Finance LLC f/k/a Actavis Inc. f/k/a Watson
`Pharmaceuticals, Inc., Allergan Sales, LLC, Allergan USA, Inc.,
`Watson Laboratories, Inc., Warner Chilcott Company, LLC, Actavis
`Pharma, Inc. f/k/a Watson Pharma, Inc., Actavis South Atlantic
`LLC, Actavis Elizabeth LLC, Actavis Mid Atlantic LLC, Actavis
`Totowa LLC, Actavis LLC, Actavis Kadian LLC, Actavis
`Laboratories UT, Inc., Actavis Laboratories FL, Inc., Johnson &
`Johnson, Janssen Pharmaceuticals, Inc., Noramco, Inc., Ortho-
`McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen
`Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc. n/k/a Janssen
`Pharmaceuticals, Inc., Endo Health Solutions Inc., Endo
`Pharmaceuticals, Inc., Par Pharmaceutical, Inc., Par
`Pharmaceutical Companies, Inc. f/k/a Par Pharmaceutical
`Holdings, Inc., Teva Pharmaceutical Industries LTD., Teva
`Pharmaceuticals USA, Inc., Cephalon, Inc., Mallinckrodt PLC,
`Mallinckrodt LLC, SpecGx LLC, KVK-Tech, Inc., Amneal
`Pharmaceuticals, LLC, Amneal Pharmaceuticals, Inc., Impax
`Laboratories, LLC, Amneal Pharmaceuticals of New York LLC, CVS
`Health Corporation, CVS Indiana L.L.C., CVS Rx Services, Inc.,
`CVS Tennessee Distribution, L.L.C., CVS Pharmacy, Inc., West
`Virginia CVS Pharmacy, LLC, Rite Aid Corporation, Rite Aid of
`Maryland, Inc., d/b/a Rite Aid Mid-Atlantic Customer Support
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`The Third Amended Complaint is the operative pleading.
`
`Defendants are wholesale distributors of pharmaceutical and
`
`other products, including prescription and over-the-counter
`(OTC) medicines, as well as health and beauty aids. Defendants
`distribute a full line of medical products and supplies to
`pharmacies and hospitals across the United States.
`
`Chris Zimmerman of ABDC described the important role that
`wholesale distributors play in maintaining an efficient supply
`chain between manufacturers and pharmacies:
`[T]here’s 2,000 manufacturers . . . that we buy
`products from where we purchase - - we carry anywhere
`from 60,000 different items within our warehouses and
`. . . we have over 16,000 pharmacy customers.
`
`So, what we do, without a distributor, each one of
`those 2,000 manufacturers have to ship direct to the
`pharmacy. And those pharmacies would have to place
`2,000 separate orders. They’d have to receive 2,000
`separate receipts at the door each day. And that’s
`just the product going out.
`
`There’s also the setup of the customers. The
`manufacturers only have to set up a few distributors
`and sell their products to the distributors. And
`then, we handle all the pharmacies, making sure that
`they have an appropriate license . . .
`
`
`
`Center, Inc., Rite Aid of West Virginia, Inc., Walgreens Boots
`Alliance, Inc., Walgreen Eastern Co., Inc., Walgreen Co., H.D.
`Smith Wholesale Drug Co., Kroger Limited Partnership I, Kroger
`Limited Partnership II, Walmart Inc., Wal-Mart Stores East d/b/a
`Wal-Mart Pharmacy Warehouse #46, Wal-Mart Pharmacy Warehouse
`#45, Wal-Mart Pharmacy Warehouse, Express Scripts Holding
`Company, Express Scripts, Inc., Caremark Rx, LLC, Optum, Inc.,
`OptumRx Inc., and Tasmanian Alkaloids Pty. LTD. See Third
`Amend. Compl. ¶¶ 42–123, 146–299.
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`[M]anufacturers couldn’t handle it because they ship
`like once a week, where we ship every single day, and
`the pharmacies need those products the following day.
`
`Zimmerman, 5/13/21, at 151.
`
`Each defendant operates multiple distribution centers
`across the United States. ABDC has 27 distribution centers;
`Cardinal has more than 20; and McKesson has 28. See Zimmerman,
`5/12/21, at 149; Moné, 5/20/21, at 167; Oriente, 5/25/21, at 13.
`II. The Witnesses
`
`Seventy witnesses testified at trial, either live or by
`designation. They are:
`
`1.
`Robert “Corey” Waller is a physician and Associate
`Professor at Michigan State University. See Waller, 5/4/21, at
`11-12. Dr. Waller was qualified as an expert in the fields of
`neuroscience, addiction, and pain. See id. at 20.
`
`2.
`David Courtwright is a historian who taught at the
`University of North Florida and other institutions before
`retiring in 2019. See Courtwright, 5/5/21, at 10. Dr.
`Courtwright was qualified as an expert in the history of opiate
`use and abuse in drug policy. See id. at 18.
`
`3.
`Rahul Gupta served as Physician Director, Local Health
`Officer, and Executive Director of the Kanawha-Charleston Health
`Department from March 2009 to December 2014. See Gupta, 5/5/21,
`at 47. Dr. Gupta also served as the Commissioner for the Bureau
`of Public Health and Human Resources and the State Health
`
`
`
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`Officer for the State of West Virginia from January 2015 to
`November 2018. See id. at 47.
`
`4.
`Connie Priddy is the Director of Quality Compliance at
`Cabell County EMS and the Program Coordinator for the Huntington
`Quick Response Team (“QRT”). See Priddy, 5/6/21, at 182–83.
`Ms. Priddy is also a licensed nurse. See id. at 183-85.
`
`5.
`Jan Rader is the Huntington Fire Chief and is also a
`nurse. See Rader, 5/7/21, at 27, 29. Chief Rader has been with
`the Huntington Fire Department for 27 years. See id. at 27-28.
`
`6.
`Craig McCann is a data analyst at Securities
`Litigation and Consulting Group, Inc. See McCann, 5/10/21, at
`9. Dr. McCann was qualified as an expert on data processing,
`validating, reconciling, and summarizing large datasets as they
`relate to ARCOS and related governmental datasets. See id. at
`20.
`Chris Zimmerman is the Senior Vice President of
`7.
`
`Corporate Security and Regulatory Affairs at ABDC. See
`Zimmerman, 5/12/21, at 128. He has been with ABDC (or its
`predecessor company) since 1990. See id.
`
`8.
`Donna Kelley is employed at Discount Emporium, Inc.,
`doing business as Drug Emporium. See Kelley, 5/13/21, at 229.
`She testified as a records custodian for Drug Emporium. See id.
`
`9.
`David May is the Vice President of Diversion Control
`and Security for ABDC. See May, 5/14/21, at 13. He has been
`
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`with the company since 2014. See id. at 14. Prior to joining
`ABDC, he worked for the DEA for thirty years. See id. at 16-17.
`
`10. Stephen Mays is the Vice President of Regulatory
`Affairs for ABDC. See 5/17/21, at 177-78. He has been an
`employee for ABDC or its predecessor companies since 1974. See
`Mays, 5/18/21, at 145-46.
`
`11. Michael Perry was a Sales Executive with ABDC from
`1996 until 2020, when he retired. See Perry, 5/19/21, at 67-68.
`
`12. Michael Moné was employed by Cardinal Health from 2006
`to 2012. See Moné, 5/19/21, at 203. In December of 2007, Mr.
`Moné assumed the position of Vice President of Anti-Diversion
`for Cardinal. See id. at 205. Mr. Moné has been a practicing
`pharmacist as well as a practicing attorney. See Moné, 5/20/21,
`at 152-53.
`
`13. Joseph Werthammer is a pediatrician with a
`subspecialty in neonatology, and currently works as a full-time
`neonatologist. See Werthammer, 5/21/21, at 9-10. Dr.
`Werthammer practices at the Cabell-Huntington Hospital and the
`School of Medicine at Marshall University. See id. at 10.
`
`14. Jesse Kave was employed by Cardinal Health as a
`business consultant in its sales department from 2006 to 2018.
`See Kave, 5/21/21, at 62-64.
`
`15. Scott Lemley is the Director of Innovation for the
`City of Huntington. See Lemley, 5/21/21, at 112. He previously
`
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`worked as a Criminal Intelligence Analyst for the Huntington
`Police Department and as a member of the Mayor’s Office of Drug
`Control Policy. See id. at 112-13.
`
`16. Michael Oriente has been employed at McKesson since
`2004. See Oriente, 5/25/21, at 18. He was a Director of
`Operations for one of McKesson’s distribution centers for three
`years before becoming a Director of Regulatory Affairs. See id.
`at 18-19.
`
`17. Timothy Ashworth is a Regional Sales Manager for
`McKesson. See Ashworth, 5/25/21, at 194. He has been with
`McKesson since 2005. See id. at 195.
`
`18. James Rafalski previously was employed as a DEA
`Diversion Investigator from 2004 to 2017. See Rafalski,
`5/26/21, at 15-16. The court granted in part and denied in part
`defendant’s Daubert motion regarding Mr. Rafalski’s testimony.
`See ECF No. 1529.
`
`19. Charles “Chuck” Zerkle serves as Cabell County Sheriff
`and was first elected to that position in 2016. See Zerkle,
`5/27/21, at 77, 84-85.
`
`20. Lyn O’Connell works for the Joan C. Edwards School of
`Medicine as the Associate Director of Addiction Sciences. See
`O'Connell, 5/27/21, at 192.
`
`21. Joseph Rannazzisi worked at the DEA from March 1986 to
`October 2015. See Rannazzisi, 6/7/21, at 165. He was Deputy
`
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`Assistant Administrator for the DEA’s Office of Diversion
`Control for ten years, from July 2005 to October 2015. See id.
`at 165; see also Rannazzisi, 6/8/21, at 211-12.
`
`22. Gordon Smith is a public health epidemiologist at the
`West Virginia University School of Public Health. See Smith,
`6/10/21, at 97. Dr. Smith was qualified as an expert on
`epidemiology, drug overdoses, and overdose data and trends for
`the State of West Virginia and Cabell County. See id. at 114.
`
`23. Jakki Mohr is a Professor of Marketing at the
`University of Montana. See Mohr, 6/10/21, at 227-28. Dr. Mohr
`was qualified as an expert in the field of marketing. See id.
`at 234.
`
`24. Katherine Keyes is an Associate Professor of
`Epidemiology at Columbia University's Mailman School of Public
`Health. See Keyes, 6/11/21, at 150-51. Dr. Keyes was qualified
`as an expert in the field of epidemiology, specializing in
`opioid use, Opioid Use Disorder, and related harms. See id. at
`160.
`
`25. Lacey Keller is co-owner of MK Analytics, a data and
`analytics company. See Keller, 6/15/21, at 49, 51-52. Ms.
`Keller was qualified as an expert in the field of data
`analytics. See id. at 58.
`
`26. Nancy Young is the Executive Director of Children and
`Family Futures, a non-profit organization that works on public
`
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`policy issues affecting children of parents with Substance Use
`Disorders. See Young, 6/16/21, at 9. Dr. Young was qualified
`as an expert on the impact of opioids on children and families
`and remedies to address their impact. See id. at 18.
`
`27. Kevin Yingling is Chairman of the Board for the Cabell
`County Health Department and the Chairman of the Board of Tri-
`State Medical Missions. See Yingling, 6/16/21, at 133-34. Dr.
`Yingling also works at PROACT once a week providing medication-
`assisted treatment. See id. at 152.
`
`28. Thomas McGuire is a health economist in the Department
`of Healthcare Policy at Harvard Medical School. See McGuire,
`6/17/21, at 7-8. Dr. McGuire was qualified as an expert in the
`field of health economics. See id. at 12.
`
`29. Judith Feinberg is an internist with special training
`in infectious diseases. See Feinberg, 6/17/21, at 88-89. She
`is employed at the West Virginia University School of Medicine
`as a Professor of Behavioral Medicine and Psychiatry, Professor
`of Medicine in the section of infectious diseases, and Doctor
`E.B. Flink Vice Chair of Medicine for Research. See id. Dr.
`Feinberg was qualified as an expert in the prevention and
`treatment of infectious diseases associated with opioid use
`disorder and injection opioid drug use. See id. at 106.
`
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`30. Skip Holbrook was Chief of the Huntington Police
`
`Department from 2007 to 2014, and he served on the Appalachia
`HIDTA Executive Board. See Holbrook, 6/17/21, at 189-90.
`
`31. Caleb Alexander is the owner and co-founder of a
`consultancy called Monument Analytics, a Professor of
`Epidemiology and Medicine at Johns Hopkins University, and a
`general internist. See Alexander, 6/28/21, at 8-9. Dr.
`Alexander was qualified as an expert in the field of
`epidemiology and opioid abatement intervention. See id. at 18-
`19.
`32. George Barrett is a forensic economist with the
`
`consulting firm of Brookshire Barrett & Associates. See
`Barrett, 6/29/21, at 55-56. Mr. Barrett was qualified as an
`expert in the field of forensic economics. See id. at 66.
`
`33. Steve Williams is the Mayor of the City of Huntington,
`and he has served in that role since January 1, 2013. See
`Williams, 6/30/21, at 7-8.
`
`34. Chris Gilligan is the Chief of the Division of Pain
`Medicine at Brigham & Women’s Hospital in Boston, a teaching
`hospital for Harvard Medical School. See Gilligan, 7/2/21, at
`8, 12-13. Dr. Gilligan was qualified as an expert in the field
`of pain management and the risks and benefits of prescription
`opioids. See id. at 26.
`
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`35. Timothy Deer is a practicing physician with a
`
`specialty in anesthesiology and pain medicine. See Deer,
`7/7/21, at 8-9. Dr. Deer has practiced pain medicine in
`Charleston for twenty-seven years, and he runs the largest pain
`practice in West Virginia. See id. at 12-13, 22-23. Dr. Deer
`was qualified as an expert in pain management and the standard
`of care for pain management. See id. at 37.
`
`36. James Hughes is an economist who specializes in
`microeconomics, particularly labor economics and health
`economics. See Hughes, 7/7/21, at 209. Dr. Hughes is a
`Professor of Economics Emeritus at Bates College. See id. at
`212. Dr. Hughes was qualified as an expert in the fields of
`health economics and health insurance related to prescription
`medicines. See id. at 220.
`
`37. Theodore Martens is a certified public accountant and
`specializes in forensic accounting. See Martens, 7/8/21, at 24-
`25, 27. Mr. Martens was qualified as an expert in the fields of
`forensic accounting and data analytics. See id. at 40.
`
`38. Kevin M. Murphy is the George J. Stigler Distinguished
`Service Professor of Economics in the Graduate School of
`Business in the Department of Economics at the University of
`Chicago. See Murphy, 7/8/21, at 56. Dr. Murphy was qualified
`as an expert in the field of economics and especially in health
`economics. See id. at 63.
`
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`39. Peter Boberg is an economist at Charles River
`
`Associates, a Boston-based economic consulting firm. See
`Boberg, 7/8/21, at 151, 156. Dr. Boberg was qualified as an
`expert in the fields of econometrics, data analysis, and large
`datasets. See id. at 160.
`
`40. John MacDonald is the Principal Executive Officer and
`President of Berkley Research Group, a global consulting firm.
`See MacDonald, 7/9/21, at 8-9. Mr. MacDonald was qualified as
`an expert in the fields of data analytics related to the
`pharmaceutical supply chain. See id. at 16.
`
`41. Robert Rufus is a certified public accountant and a
`forensic accountant. See Rufus, 7/12/21, at 8-9, 11. Dr. Rufus
`was qualified as an expert in public and forensic accounting.
`See id. at 16.
`
`42. Stephenie Colston is currently the President and Chief
`Executive Office of Colston Consulting Group, which offers
`consulting services related to both mental health and substance
`use disorder services. See Colston, 7/12/21, at 57. Ms.
`Colston was qualified as an expert in the area of systems,
`programs, and services that provide care for people with
`substance use disorder, the structure, financing, and how to
`assess them, and trends in the substances that are being abused.
`See id. at 79.
`
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`43. Vic Brown was the Executive Director of Appalachia
`
`HIDTA. See Brown, 5/17/21, at 247, 272-73.
`
`44. Stacy Harper-Avilla testified on behalf of the DEA.
`See Harper-Avilla, 4/11/19, at 17. She is the Section Chief of
`the DEA’s United Nations Reporting and Quota Section. See id.
`at 21.
`
`45. Thomas Prevoznik is a 28-year veteran of the DEA
`testifying as a 30(b)(6) witness. See Prevoznik, 4/17/19, at
`42, 71. He is the Acting Section Chief for Pharmaceutical
`Investigations in the Diversion Control Division. See id. at
`42.
`
`
`46. Matthew Strait is a 20-year veteran of the DEA who
`testified on its behalf. See Strait, 5/31/19, at 14-15. He is
`the Senior Policy Advisor to the Assistant Administrator for the
`Diversion Control Division. See id. at 16.
`
`47. John Gray is the former president and CEO of
`Healthcare Distribution Alliance (“HDA”). See Gray, 7/30/20, at
`19. He served as president and CEO of the HDA from April 2004
`until May 2020. See id. at 20.
`
`48. Patrick Kelly testified on behalf of the Healthcare
`Distribution Alliance in both his personal capacity and as a
`Rule 30(b)(6) witness for the organization. See Kelly, 5/10/19,
`at 31.
`
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`49. Eric Cherveny works in diversion control at ABDC. See
`
`Cherveny, 11/9/18, at 200.
`
`50. Nathan Elkins works in Sales at ABDC and started in
`2005 as a Retail Account Manager. See Elkins, 11/14/18, at 27.
`
`51. Edward Hazewski started at ABDC in 2007 and is the
`Director of Diversion Control and Security. See Hazewski,
`10/25/18, at 19.
`
`52. Lisa Mash was the Vice President of Sales at ABDC for
`approximately 14 years. See Mash, 7/28/20 at 27.
`
`53. Eric Brantley is a former Cardinal Health employee who
`worked there for eleven years from 2002 to 2013. See Brantley,
`11/27/18, at 518. He worked in the Quality and Regulatory
`Affairs department for approximately three years. See id. at
`18, 520.
`
`54. Mark Hartman worked at Cardinal in a variety of
`positions for twelve years from 1998 until February 2010. See
`Hartman, 11/15/18, at 131, 356-59. For a time, he was the
`Senior Vice President of Supply Chain Integrity and Regulatory
`Operations. See id. at 19.
`
`55. Kim Howenstein is the Director of Non-PD Customer
`Management at Cardinal Health. See Howenstein, 1/10/19, at 11.
`
`56. Steve Lawrence is the Senior Vice President of
`Independent Sales at Cardinal Health. See Lawrence, 1/4/19, at
`26.
`
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`57. Jennifer Norris testified as a 30(b)(6) witness for
`
`Cardinal. See Norris, 8/7/18, at 16-17. At the time she was
`deposed, she had been with Cardinal for eighteen years and held
`the position of Vice President & Associate General Counsel at
`Cardinal Health. See id. at 14.
`
`58. Gilberto Quintero is an employee of Cardinal Health
`who started in December 2009 as Senior Vice President of Quality
`Regulatory Affairs. See Quintero, 12/6/18, at 12, 16-17.
`
`59. Steve Reardon started at Cardinal Health in 1998 and
`retired in 2016. See Reardon, 11/30/18, at 498. From 2005 to
`2007, he was the Vice President of Quality and Regulatory
`Affairs. See id. at 410-11.
`
`
`60. Gary Boggs is the Vice President of Regulatory Affairs
`and Compliance at McKesson. See Boggs, 1/17/19, at 18. Prior
`to working for McKesson, he worked for the DEA from 1985 until
`he retired in 2012. See id. at 20.
`
`61. Dave Gustin was a former Director of Regulatory
`Affairs at McKesson for approximately seven years until 2013.
`See Gustin, 8/17/18, at 22, 478-81. Gustin began working at
`McKesson in 1995. See id. at 478.
`
`62. Nathan Hartle is the Vice President of Regulatory
`Affairs and Compliance at McKesson. See Hartle, 7/31/2018, at
`15. He testified on behalf of McKesson as a 30(b)(6) witness.
`See id. at 16.
`
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`63. Nathan Hartle also testified as a fact witness. See
`
`Hartle, 8/1/18, at 15.
`
`64. Gary Hilliard was the Director of Regulatory Affairs
`at McKesson from 1998 to 2016. See Hilliard, 1/10/19, at 17.
`
`65. Donald Walker was the Senior Vice President of
`Distribution for McKesson from 1996 until he retired in June
`2015. See Walker, 1/10/19, at 357-59. He started at McKesson
`in 1987. See id. at 357.
`
`66. Darren Cox is a Special Agent with the Federal Bureau
`of Investigation (“FBI”) who served as the coordinator of the
`Huntington Violent Crime and Drug Task Force from November 2012
`to May 2015. See Cox, 7/15/20, at 10-11.
`
`67. June Howard is Chief of the DEA’s Reports Analysis
`Unit. See Howard, 4/25/19, at 17-18. She was formerly the
`Chief of the Targeting and Analysis Unit from 1996 to 2010. See
`id. at 19. Ms. Howard testified on behalf of the DEA. See id.
`at 15-17.
`
`68. Robert Knittle was the Executive Director of West
`Virginia Board of Medicine from December 2005 to December 31,
`2016. See Knittle, 8/27/20, at 25-26.
`
`69. Michael Mapes worked for the DEA from 1977 to 2007 in
`various positions, all related to diversion. See Mapes,
`7/11/19, at 47-48. He has worked in the pharmaceutical industry
`since retiring from the DEA. See id. at 349-50.
`
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`70. Beth Thompson testified as a 30(b)(6) witness on
`
`behalf of the Cabell County Commission. See Thompson, 7/23/20,
`at 5-7.
`III. Opioid Epidemic in Huntington and Cabell
`
`The court finds that there is and has been an opioid
`epidemic in the City of Huntington and Cabell County, West
`Virginia. See Keyes, 6/11/21, at 198. “The U.S. opioid crisis
`is an extraordinary public health crisis that started at least
`two decades ago and has accelerated over the past decade.” Ex.
`MC-WV-02079 at 1. “Since 2000, more than 300,000 Americans have
`lost their lives to an opioid overdose.” Ex. DEF-WV-01597 at
`22. West Virginia likewise “has been experiencing a public
`health epidemic of drug overdose deaths for more than a decade.”
`Ex. P-41213 at 4.
`
`Former West Virginia Bureau of Public Health Commissioner,
`Dr. Rahul Gupta, described West Virginia as “ground zero” for
`the national opioid epidemic, the hardest-hit state in the
`country. Gupta, 5/5/21, at 74, 77; Gupta, 5/6/21, at 96.
`“Opioids were detected in 6,001 drug overdose deaths in West
`Virginia from 2001 through 2015.” Ex. P-41213 at 7.
`
`Huntington and Cabell are among the West Virginia
`communities hardest hit by the opioid epidemic. From 2001 to
`2018, there were 1,151 overdose deaths in Cabell County, of
`which 1,002 were opioid-related. See Smith, 6/10/21, at 134-35.
`
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`From 2001 to 2017, the fatal overdose rate in Cabell County
`increased from 16.6 to 213.9 per 100,000. See id. at 139-40.
`Cabell County’s opioid overdose rate is higher than that of West
`Virginia, which itself is above the national average. See
`Keyes, 6/11/21, at 201.
`
`As of 2017, more than 10% of the population of the City of
`Huntington and Cabell County, and Wayne County are or have been
`addicted to opioids. See Ex. P-41850 at 7; Werthammer, 5/21/21,
`at 20. In 2018, the prevalence of opioid use disorder (“OUD”)
`in Cabell and Huntington was 8.9%, which represents
`approximately 8,200 people. See Keyes, 6/11/21, at 212. Dr.
`Keyes estimated that approximately 7,109 of these OUD cases in
`Cabell and Huntington were directly or indirectly attributable
`to prescription opioids. See Keyes, 6/14/21, at 160, 175.
`
`Over 600 pregnant women in Cabell and Huntington have been
`admitted to treatment with OUD. See Young, 6/16/21, at 34.
`“West Virginia has the highest incidence of Neonatal Abstinence
`Syndrome in the country.” Werthammer, 5/21/21, at 16. Since
`2010, approximately 2,500 newborns in Cabell County have been
`born with neonatal abstinence syndrome (“NAS”). See id. at 18.
`In 2012, one-third of Cabell and Huntington Hospital NICU
`patients were babies withdrawing from opioids. See id. at 14.
`The rate of babies being born with NAS at Cabell and Huntington
`Hospital has been as high as 10%. See id. at 16-18.
`
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`The number of children in West Virginia placed into foster
`
`care doubled over a ten-year period during the opioid epidemic,
`with 80% of placements involving substance abuse issues. See
`Young, 6/16/21, at 20, 42-43. In Cabell County, overdose deaths
`and foster care entries exceeded the national averages,
`resulting in demand for child placements not being met and
`increased placements outside of extended family, which can have
`adverse effects on a child’s intellectual, social, and emotional
`development. See id. at 19-22, 33, 41-46, 58-59.
`
`The opioid epidemic in Cabell/Huntington has resulted in
`sharply increased rates of infectious disease, including HIV,
`Hepatitis B and C, and complications due to Endocarditis. See
`Yingling, 6/16/21, at 156-58. Injection drug use introduces
`foreign organisms into the bloodstream, causing blood-borne
`infections that have high mortality and morbidity and are a
`substantial part of the public health crisis of the opioid
`epidemic. See Feinberg, 6/17/21, at 109, 112.
`
`For people who inject drugs, there is a 1 in 160 chance of
`acquiring HIV with each injection, and an increasing risk with
`every additional injection. See id. at 115. In 2019, there
`were 69 new cases of HIV in Cabell County, of which 90% were
`among people who inject drugs. See id. at 117.
`
`Hepatitis C is even more contagious than HIV among
`injection drug users, with approximately 40% of injection drug
`
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`users contracting Hepatitis C in their first year of use and 90%
`eventually contracting it. See id. at 128-29. As a result,
`West Virginia has, for the past two decades, been among the top
`two or three states for rate of Hepatitis C infection, while the
`rate in Cabell County is far higher still, reaching a rate of
`10.3 cases per 100,000 people—more than double West Virginia’s
`already-high statewide rate of 5.1 cases per 100,000 people.
`See id. at 129-30.
`
`Hepatitis B, too, is highly associated with injection drug
`use and, as a result, West Virginia has had the highest
`Hepatitis B rates in the United States for over a decade. See
`id. at 135-36. At present, the incidence of Hepatitis B in West
`Virginia is 14 times the national average, while Cabell County
`has among the highest rates of Hepatitis B infections among West
`Virginia’s counties, measuring 17 cases per 100,000 people in
`2016. See id. at 136.
`
`Endocarditis is most commonly caused by the injection of
`bacteria through the skin. See id. at 140. Although
`Endocarditis is not actively surveilled, a recent study across
`four West Virginia hospitals that included two in Cabell and
`Huntington showed that a significant proportion of the 762
`Endocarditis cases observed is concentrated among people living
`in or near Cabell and Huntington. See id. at 144.
`
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