City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al

Filing 1236

MEMORANDUM OPINION AND ORDER denying Plaintiffs' 1008 Motion for Partial Summary Judgment. Signed by Senior Judge David A. Faber on 3/15/2021. (cc: counsel of record who have registered to receive an electronic NEF) (hkl)

Case 3:17-cv-01362 Document 1236 Filed 03/15/21 Page 1 of 10 PageID #: 42626

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-01362

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
CABELL COUNTY COMMISSION,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-01665

AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiffs’ motion for partial
summary judgment regarding ARCOS data.

See ECF No. 1008.

That

motion is fully briefed and was argued before the court on
January 6, 2021.
I.
The Controlled Substances Act of 1970 requires manufacturers
and distributors to report their controlled substances
transactions to the Drug Enforcement Administration (DEA).

See

https://www.deadiversion.usdoj.gov/arcos. (last visited March 8,

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2021).

The DEA maintains the Automation of Reports and

Consolidated Orders System (“ARCOS”), an “automated,
comprehensive drug reporting system which monitors the flow of
DEA controlled substances from their point of manufacture through
commercial distribution channels to point of sale or distribution
at the dispensing/retail level - hospitals, retail pharmacies,
practitioners, mid-level practitioners, and teaching
institutions.”

Id.

“ARCOS accumulates these transactions which are then
summarized into reports which give investigators in Federal and
state government agencies information which can then be used to
identify the diversion of controlled substances into illicit
channels of distribution.”

Id.

The ARCOS database “includes

supplier name, registration number, address and business
activity; buyer name, registration number and address; as well as
drug code, transaction date, total dosage units, and total
grams.”

In re Nat. Prescription Opiate Litig., 927 F.3d 919, 924

(6th Cir. 2019).
In the MDL, the DEA produced a set of ARCOS Data reflecting
transactions of drug products containing one or more of fourteen
opioid drugs during the time period January 1, 2006 through
December 31, 2014.

See ECF No. 1008-2 at 2 (Excerpts of Expert

Report of Dr. Craig J. McCann).

The DEA produced this data in

stages and Dr. McCann summarized the production in his expert

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report.

See id. at 2-3.

Dr. McCann reported that the ARCOS Data

contained 500,709,803 total transaction records.

See id.

In the

MDL, defendants, including Cardinal Health, stipulated to the
accuracy of the ARCOS Data as produced by the DEA.

See ECF No.

2675 in Case No. 1:17-md-02804 at 2 (“The documents produced by
the United States Drug Enforcement Administration (“DEA”) related
to Automated Records and Consolidated Orders System (“ARCOS
Data”) reflecting transactions in drug products containing one or
more of fourteen drugs:

buprenorphine, codeine, dihydrocodeine,

fentanyl, hydrocodone, hydromorphone, levorphanol, meperidine,
methadone, morphine, powdered opium, oxycodone, oxymorphone, and
tapentadol for the period of January 1, 2006 through December 31,
2014 shall be deemed authentic and presumed admissible for the
purposes of this litigation.”).
Dr. McCann adjusted the raw ARCOS data in several ways, in
some cases removing certain transactions.
5-6.

See ECF No. 1008-2 at

He also compared the ARCOS data to Retail Drug Summary

Reports produced by the DEA1 to confirm the accuracy of the ARCOS
data received.

See id. at 6-7.

Dr. McCann also reviewed

transaction data produced in discovery by defendants and found
1

The DEA publishes six ARCOS Retail Drug Summary Reports
each year that summarize the weight of opioids reported in ARCOS
transactions. See ECF No. 1008-2 at 6; see also ECF No. 2675 in
Case No. 1:17-md-02804 at 2 (“DEA can and does use ARCOS data to
create summary reports showing how many controlled substances
were manufactured and distributed throughout the United
States.”).
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small gaps in the data produced.

See id. at 8.

Ultimately, Dr.

McCann concluded that the overlap between the ARCOS data and the
transactional data from defendants demonstrated that both sets of
data are reliable.

See id. at 9.

Plaintiffs, pursuant to Rule 56 of the Federal Rules of
Civil Procedure, seek an order granting partial summary judgment
and holding that the ARCOS data received by the DEA and processed
by Dr. McCann accurately reflects the shipments of opioid
products reported to the DEA by DEA licensed wholesale
distributors (“Processed ARCOS Data”).
According to plaintiffs, because there is no factual dispute
that Dr. McCann’s Processed ARCOS Data accurately reflects the
data provided by the DEA regarding the defendants’ shipments of
opioids, this court should grant partial summary judgment on this
question.
II.
“A party may move for summary judgment, identifying each
claim or defense—or the part of each claim or defense—on which
summary judgment is sought.

The court shall grant summary

judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(a).

Therefore, if a court

finds that there is no genuine dispute of material fact as to
only a single claim or defense or as to part of a claim or

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defense, it may enter partial summary judgment.

See id.; see

also Chavez v. Cnty. of Kern, No. 1:12-CV-01004 JLT, 2014 WL
412562, at *2 (E.D. Cal. Feb. 3, 2014) (noting that “a court may
grant summary adjudication, or partial summary judgment, when
there is no genuine issue of material fact as to a particular
claim or portion of that claim”).

“If the court does not grant

all the relief requested by the motion [for summary judgment], it
may enter an order stating any material fact—including an item of
damages or other relief—that is not genuinely in dispute and
treating the fact as established in the case.”

Fed. R. Civ. P.

56(g).
One court explained partial summary judgment under Rule 56
as follows:
There are two relevant provisions of the summary
judgment rule that are not usually at issue in summary
judgment motions. Rule 56(a) in its first sentence
provides, “A party may move for summary judgment,
identifying each claim or defense – or the part of each
claim or defense – on which summary judgment is
sought.” Fed. R. Civ. P. 56(a). Rule 56(g) provides,
“If the court does not grant all the relief requested
by the motion, it may enter an order stating any
material fact – including an item of damages or other
relief – that is not genuinely in dispute and treating
the fact as established in the case.” Fed. R. Civ. P.
56(g).
The current format of these two rules dates from
2010. The Committee Notes on Rules – 2010 Amendment
provide, “The first sentence [of Rule 56(a)] is added
to make clear at the beginning that summary judgment
may be requested not only as to an entire case but also
as to a claim, defense, or part of a claim or defense.”
Fed. R. Civ. P. advisory committee’s note. The
Committee Notes further provide, “Subdivision (g)
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applies when the court does not grant all the relief
requested by a motion for summary judgment. It becomes
relevant only after the court has applied the
summary-judgment standard . . . to each claim, defense,
or part of a claim or defense, identified by the
motion. Once that duty is discharged, the court may
decide whether to apply the summary-judgment standard
to dispose of a material fact that is not genuinely in
dispute.” Id. “If it is readily apparent that the
court cannot grant all the relief requested by the
motion, it may properly decide that the cost of
determining whether some potential fact disputes may be
eliminated by summary disposition is greater than the
cost of resolving those disputes by other means,
including trial. Even if the court believes that a
fact is not genuinely in dispute it may refrain from
ordering that the fact be treated as established. The
court may conclude that it is better to leave open for
trial facts and issues that may be better illuminated
by the trial of related facts that must be tried in any
event.” Id.
Adams v. Klein, Civil Action No. 18-1330-RGA, 2020 WL 2404772, *4
(May 12, 2020).
According to plaintiffs, because there is no dispute
regarding the accuracy of the Processed ARCOS Data, the parties
and the court should not waste trial time on proof of this
undisputed fact.
III.
Plaintiffs’ motion is not a motion for partial summary
judgment within the meaning of Rule 56.

The motion does not

describe a “claim” or “part of a claim” upon which judgment may
be granted.

See Adams, 2020 WL 2404772, at *4 (“My instinctive

reaction to Plaintiffs’ motion is that I do not think that it
seeks resolution of a ‘part of a claim or defense’ as intended by

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the rule. . . .

It is not as though the elements on which they

seek summary judgment are some sort of stand-alone elements
which, once resolved, can be cut out of the case or stipulated to
in some sensible fashion so that a portion of the trial is no
longer necessary.”); see also Sunflower Condo. Ass’n, Inc. v.
Everest Nat’l Ins. Co., CASE NO. 19-CV-80743-RUIZ/REINHART, 2020
WL 4501805, *9 (S.D. Fl. Apr. 28, 2020) (“Because Everest’s
motion does not seek relief that disposes of a claim or defense,
or a part of a claim or defense, it arguably is not proper as a
motion for summary judgment.

At most, it seeks rulings that

limit the scope of what evidence Sunflower can introduce at
trial. . . .”); Cardenas v. Kanco Hay, LLC, Case No. 14-1067,
2016 WL 3881345, *7 (D. Kan. Jul. 18, 2016) (“While plaintiff’s
motion states that plaintiff is asking for partial summary
judgment, the motion does not describe a claim or part of a claim
upon which a ‘judgment’ may be entered.

‘Judgment’ cannot be

entered upon a finding of forseeability or the other ‘elements’
of the claims upon which plaintiff moves for partial summary
judgment.”); Bd. of Trs. of the Auto. Indus. Welfare Fund v.
Groth Oldsmobile/Chevrolet, Inc., No. C 09-0465 PJH, 2011 WL
1362178, *12 (N.D. Cal. Apr. 11, 2011) (“While Rule 56 allows the
court in its discretion to find that particular facts are not in
dispute, it does not authorize parties to move for ‘partial
summary judgment’ as to a particular fact.”).

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Plaintiffs’ motion is really a motion under Rule 56(g)
because it, in essence, seeks a ruling that a certain fact, i.e.,
the processed ARCOS data, is established.

However, plaintiffs

may not invoke Rule 56(g) because it only becomes relevant after
the court has applied the summary judgment standard.

See Moses

H. Cone Mem’l Hosp. Operating Corp. v. Conifer Physician Servs.,
Inc., 1:13CV651, 2017 WL 1378144, *5 (M.D.N.C. Apr. 11, 2017)
(“To the extent Conifer seeks partial summary judgment as to
certain grounds for the alleged breach of contract, the Court
finds that this is improper under Federal Rule of Civil Procedure
56.

Rule 56 permits a party to ‘move for summary judgment,

identifying each claim or defense—or the part of each claim or
defense—on which summary judgment is sought.’
56(a).

Fed. R. Civ. P.

Partial summary judgment is permitted (e.g., finding of

liability, the issues of damages); however, this rule is improper
as to what Conifer seeks; that is, a pruning of factual
allegations. . . .”); see also Steeped, Inc. v. Nuzee, Inc., Case
No. 19-cv-03763-HSG, 2020 WL 6891832, *2 (N.D. Cal. Nov. 24,
2020) (“Crucially, this provision [Rule 56(g)] becomes relevant
only after the court has applied the summary-judgment standard .
. . to each claim, defense, or part of a claim or defense,
identified by the motion. . . .

Once that duty is discharged,

the court may decide whether to apply the summary-judgment
standard to dispose of a material fact that is not genuinely in

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dispute.”) (emphasis in original) (internal citation and
quotation omitted); Milliner v. Mut. Sec., Inc., Case No. 15-cv03354-THE, 2017 WL 1064978, *5 (N.D. Cal. Mar. 17, 2017)
(“Although Federal Rule of Civil Procedure 56(a) allows a party
to move for summary judgment on a part of a claim or defense and
Federal Rule of Civil Procedure 56(g) permits courts to establish
certain facts as true when a motion for summary judgment is not
fully granted, the Plaintiffs have failed to put forth—and the
Court is unaware of—any legal authority standing for the
proposition that Rule 56 can be used as a stand-alone motion to
establish mere independent facts.”).
IV.
The court understands plaintiffs’ desire to obtain a
pretrial ruling that the processed ARCOS data is admissible.
However, the parties must still work within the federal rules in
seeking rulings from the court.

Plaintiffs’ motion for partial

summary judgment is not proper under Rule 56 because it does not
actually seek a judgment.

See Sunflower Condominium Assoc., Inc.

v. Everest Nat. Ins. Co., CASE NO. 19-CV-80743-RUIZ/REINHART,
2020 WL 4501805, *9 (S.D. Fl. Apr. 28, 2020) (“While Everest’s
goal of limiting and focusing the trial is admirable, it is not
the purpose of a motion for summary judgment.

A motion for

summary judgment is what its name says – a motion to obtain a
judgment in whole or in part on a claim or defense.”) (emphasis

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in original). Plaintiffs’ motion for partial summary judgment
(ECF No. 1008) is DENIED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to those counsel of record who have registered
to receive an electronic NEF.
IT IS SO ORDERED this 15th day of March, 2021.
ENTER:

David A. Faber
Senior United States District Judge

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