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

Filing 1283

MEMORANDUM OPINION AND ORDER denying Plaintiffs' 1211 SEALED MOTION to Compel Defendant Cardinal Health to provide the complete basis for refusing to stipulate to the accuracy of Plaintiffs' F.R.E. 1006 summary of Cardinal's distributions of oxycodone and hydrocodone to dispensers in each state. Signed by Senior Judge David A. Faber on 4/22/2021. (cc: counsel of record who have registered to receive an electronic NEF) (jsa)

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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 to compel
defendant Cardinal Health “to provide the complete basis for
refusing to stipulate to the accuracy of plaintiffs’ F.R.E. 1006
summary of Cardinal’s distributions of oxycodone and hydrocodone
to dispensers in each state.”

ECF No. 1211.

That motion is

fully briefed and was argued before the court on April 14, 2021.
As the court has previously explained, the Controlled
Substances Act of 1970 requires manufacturers and distributors to
report their controlled substances transactions to the Drug

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Enforcement Administration (DEA).

See

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

2

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Report of Dr. Craig J. McCann).

The DEA produced this data in

stages, and Dr. McCann summarized the production in his expert
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
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.”).
3

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data received.

See id. at 6-7.

Dr. McCann also reviewed

transaction data produced in discovery by defendants and found
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 9.2

Dr. McCann used his processed data and prepared two charts
reflecting his calculations on the amount of oxycodone and
hydrocodone shipped by Cardinal to all fifty states and the
District of Columbia for each year from 2006 to 2014.

Plaintiffs

ask the court to compel Cardinal Health to stipulate to the
accuracy of Dr. McCann’s work or, in the alternative, order
Cardinal to tell plaintiffs why it is wrong.

Plaintiffs also ask

the court to order Cardinal to designate a Rule 30(b) witness who
can provide accurate distribution numbers by state.

According to

plaintiffs, such relief is warranted because of a stipulation
wherein the parties agreed to “work in good faith to address
specific issues relating to authenticity between now and trial”
2

Plaintiffs previously filed a motion for partial summary
judgment asking the court to hold 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 was 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. By Memorandum
Opinion and Order dated March 15, 2021, the court denied the
motion for partial summary judgment holding that it was not
proper under Rule 56 because it did not actually seek a judgment.
4

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and that “Plaintiffs will be provided an opportunity to cure all
unresolved issues relating to authenticity and foundation,
including the ability to depose and/or call a custodial witness
at trial.”

ECF No. 1228 at 2.

At the pretrial conference, plaintiffs confirmed that
resolution of this dispute hinges on the terms of the parties’
stipulation.

See ECF No. 1277 at 9 (Court:

“The problem I have

with this is what authority do I have to order the parties to do
something that’s within their discretionary management of their
case?

Do you have any authority that says I can do this?”

Well, Judge, I’m relying on the stipulation.”).3

A:

The operative

part of the stipulation reads:
6.

Cardinal Health and the CT2 Plaintiffs will
begin a process for reviewing the
authenticity and foundation for Cardinal
Health-produced documents that Plaintiffs
identify between now and trial. The
Plaintiffs have expressed a desire to, as
much as possible, negate the need for
Plaintiffs to bring multiple Cardinal Health
witnesses to trial for the sole purpose of
authenticating and establishing the proper
foundation for use of the identified
documents at trial. The parties will work in
good faith to address specific issues
relating to authenticity and foundation
between now and trial. Plaintiffs will be
provided an opportunity to cure all
unresolved issues relating to authenticity

3

As counsel conceded, the court cannot compel Cardinal
Health to stipulate to the accuracy of the exhibits. See, e.g.,
Pagan Colon v. Walgreens de San Patricio, Inc., 269 F.R.D. 165,
169 (D. Puerto Rico 2010) (district court may not compel the
parties to stipulate to facts).
5

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and foundation, including the ability to
depose and/or call a custodial witness at
trial.
ECF No. 835 (emphasis added).

Dr. McCann’s charts do not fall

under the stipulation for the simple reason that they are not
“Cardinal Health-produced documents.”

Rather, as explained

above, the charts reflect the numbers Cardinal provided to the
DEA through ARCOS, which the DEA then produced in this case, and
Dr. McCann processed.

The only numbers that Dr. McCann used that

arguably fall under the stipulation would be the “transaction
data produced in discovery by defendants.”4

The court cannot

force Cardinal Health to double check Dr. McCann’s work.

For

this reason, the motion to compel 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 22nd day of April, 2021.
ENTER:

David A. Faber
Senior United States District Judge

4

And, according to counsel for Cardinal, Cardinal Health
did not produce nationwide distribution data in this case because
it was never asked to do so. See ECF No. 1277 at 15. Any
attempt to obtain that discovery now, through a Rule 30(b)(6)
deposition or otherwise, is untimely.
6