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

Filing 1297

MEMORANDUM OPINION AND ORDER denying Defendants' 1067 MOTION in Limine, as more fully set forth herein. Signed by Senior Judge David A. Faber on 4/29/2021. (cc: counsel of record who have registered to receive an electronic NEF) (jsa)

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 defendants’ motion in limine.
See ECF No. 1067.

That motion is fully briefed and the

geographic scope aspect of the motion was argued before the court
on April 14, 2021.

For the reasons discussed below, defendants’

motion is DENIED.
I.
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.

“These cases concern the alleged

improper marketing of and inappropriate distribution of various
prescription opiate medications into cities, states, and towns
across the country.”

In re Nat'l Prescription Opiate Litig., 290

F. Supp.3d 1375, 1377 (J.P.M.L. 2017).

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.

See id. at 1378.

Given his previous experience

with multidistrict litigation, MDL 2804 was assigned to United
States District Judge Dan A. Polster.

See id. at 1379.

Since

MDL 2804's formation, well over 2,000 cases have been transferred
to the MDL court.

See In re Nat'l Prescription Opiate Litig.,

No. 1:17-MD-2804, 2019 WL 4686815, at *1 (N.D. Ohio Sept. 26,
2019).
“Shortly before the start of the first bellwether trial in
the MDL,” Judge Polster “delivered oral rulings on a number of
pretrial motions in limine (“MIL”) and other evidentiary
motions.”

ECF No. 1149-1.

According to Judge Polster:

These rulings will apply to all future cases in
this MDL that are tried by this Court. Additionally,
as a general matter, these rulings apply to remanded
cases tried by transferor courts. See David F. Herr,
Multidistrict Litigation Manual § 10:5 (May 2019
update) (“The transferor court (court to which the
actions are remanded) receives the cases in the
condition they are in at the time of remand. Decisions
that have been made in the case continue to apply
unless circumstances change warranting their
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modification. The decisions made by the transferee
court are considered ‘law of the case.’”) (footnotes
omitted). See also Manual for Complex Litigation,
Fourth § 20.132 at 224-25 (2004) (before remand of
cases to transferor courts, the transferee court should
enter “a pretrial order that fully chronicles the
proceedings, summarizes the rulings that will affect
further proceedings, outlines the issues remaining for
discovery and trial, and indicates the nature and
expected duration of further pretrial proceedings.”);
In re Welding Fume Prods. Liab. Litig., MDL 1535, 2010
WL 7699456 (N.D. Ohio June 4, 2010) (entering this type
of order).
In the future, the parties should generally not
file in any MDL case a motion (including a motion for
reconsideration) addressing an evidentiary issue
already addressed below. Going forward, a party may
file a motion in an MDL case to modify the contours of
rulings documented in this Order only if that party can
show that the particular circumstances of an individual
case warrant a revision.
Id. at 1-2.
In January of 2020, these two cases, designated in the MDL
as “Track Two” cases, were remanded to this court for further
proceedings.

The remanded cases were significantly narrowed, in

both the number of claims and defendants.

Only plaintiffs’

public nuisance claim against the “The Big Three” distributor
defendants — AmerisourceBergen Drug Corporation, McKesson
Corporation, and Cardinal Health, Inc. — is before this court.
According to Judge Polster’s “vision,” these cases were to be
remanded only “after some period of discovery” and “after they
are streamlined and otherwise made more trial-ready.”
2950 in Case No. 1:17-MD-2804.

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ECF No.

II.
The instant motion seeks to revisit Judge Polster’s rulings
with respect to four categories of evidence:
No. 1:

No. 2:

To Preclude Lay Testimony About Prescription
Opioids Being a “Gateway” to Illicit Drug Use

No. 3:

To Bar Plaintiffs from Introducing Evidence of
Defendants’ Prescription Opioid Shipments to
Places Outside Cabell County and the City of
Huntington

No. 4:

A.

To Preclude Plaintiffs from Presenting
Individualized Evidence of Opioid Misuse and
Diversion

To Preclude Plaintiffs From Offering Evidence of,
or Arguments about, Defendants’ Settlements with
the DEA or the Track One MDL Plaintiffs

Individualized Evidence of Opioid Misuse and Diversion
Defendants argue that plaintiffs should be prohibited from

introducing individual evidence of opioid misuse and diversion
for three reasons: 1) plaintiffs’ alleged vow not to rely on such
evidence at trial; 2) plaintiffs’ failure to link such evidence
to defendants; and 3) the evidence is inadmissible hearsay.
According to Judge Polster:
The parties have a long history of dispute, during
discovery, concerning Plaintiffs’ willingness and duty
to respond to discovery requests for information
regarding specific prescriptions, shipments, patients,
pharmacies, and so on. Ultimately, the Court ordered
Plaintiffs to either produce certain individualized
information or forever forswear relying on
individualized proof at trial. Faced with this option,
Plaintiffs agreed to provide individualized information
regarding, inter alia: (a) 300 persons who became
addicted to or were harmed as a result of any opioid
prescription; (b) 500 prescriptions that were
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unauthorized, medically unnecessary, ineffective, or
harmful; and (c) 500 prescriptions that caused or led
to Plaintiffs’ alleged harm. Defendants raised various
objections over the adequacy of Plaintiffs’ responses,
and Special Master David R. Cohen ultimately ruled that
Plaintiffs had satisfied their burden to respond with
sufficient examples of individualized evidence.
In each of the motions discussed below, the movant
seeks to preclude various types of individualized
evidence. On balance, the Court finds this information
would be helpful to the jury’s understanding of the
evidence at trial. However, Plaintiffs may only
introduce evidence that they produced in discovery.
Accordingly, Plaintiffs may present individualized
evidence to the extent they produced the information in
discovery and it is otherwise admissible.
* * *
Defendants seek to exclude evidence of
individualized prescriptions and shipments on the
ground that Plaintiffs elected to proceed on a theory
of aggregate proof. Defendants assert that, although
Plaintiffs produced in discovery “cherry-picked”
examples of individualized transactions, Defendants
were not allowed to obtain broader discovery that would
have uncovered counter-examples – that is, examples
that would show “that allegedly ‘suspicious’ orders
went to fill legitimate prescriptions and were not
diverted, or that allegedly improper prescriptions went
to alleviate genuine suffering without negative longterm effects on the patients who received them.
Defendants assert the Court directed Plaintiffs to
produce in discovery examples of individualized
prescriptions and shipments only to help Defendants
understand the aggregate proof, and not as a
permissible way to bolster the aggregate proof. But
the Court ruled on this issue at the time of discovery.
The Court stated that it would allow at trial evidence
of individual shipments and prescriptions to the extent
the parties produced it in discovery and it is
otherwise admissible. Thus, this motion is denied.
* * *
Defendants seek to preclude witnesses from
testifying about anecdotal personal stories relating to
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opioid use and related harms to themselves and others.
Whether this evidence is admissible depends on the
individual circumstances surrounding each witness’s
testimony, including whether Plaintiffs produced the
evidence in discovery and whether Plaintiffs can
establish a foundation for the testimony and show it is
relevant and not otherwise inadmissible. Accordingly,
the Court declines to make a blanket ruling and instead
will address Defendants’ objections when a party seeks
to introduce specific testimony at trial. As to the
issue of relevance, the Court notes that anecdotal
stories may be relevant to supplement expert testimony
or statistical evidence. See, e.g., Middleton v. City
of Flint, Mich., 92 F.3d 396, 405 (6th Cir. 1996)
(“Anecdotal evidence is most useful as a supplement to
strong statistical evidence.”) (citation omitted).
That said, the Court will not allow any party to make
improper appeals to a fact-finder’s passions and
emotions, and will also hold Plaintiffs to the promises
made in the “Singer memo.”
ECF No. 1149-1 at 40-44 (footnotes omitted).
The court sees no reason to deviate from Judge Polster’s
ruling at this juncture.

If, as defendants argue, plaintiffs are

unable to link the evidence to defendants in any meaningful way,
the court will find it irrelevant and, therefore, inadmissible.
Any hearsay objections can be lodged at trial where the court may
deal with them in context.

Finally, if plaintiffs offer evidence

that defendants believe is inconsistent with their discovery
responses, defendants can and should point it out at trial.
Therefore, individualized evidence will be allowed if it was
produced in discovery and is otherwise admissible.

The ruling is

subject to the caveat that the court will cut off such evidence
if it becomes needlessly cumulative.

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B.

Gateway Evidence
“[T]he Gateway Effect refers to evidence that some

individuals exposed to prescription opioids tend to become
addicted, and once addicted tend to later feed their addition
with illicit opioids, such as heroin.”

In re Nat'l Prescription

Opiate Litig., No. 1:17-MD-2804, 2019 WL 4043943, at *2 (N.D.
Ohio Aug. 26, 2019).

Defendants seek to preclude plaintiffs from

introducing lay testimony about prescription opioids being a
gateway to illicit drug use.

In the MDL, Judge Polster found

that lay testimony on the Gateway Theory or Effect would only be
admissible if “the proposed testimony is ‘factual’ and otherwise
admissible, i.e. it has foundation, is relevant, and is not
inadmissible hearsay.”

ECF No. 1149-1 at 30 n.59.

Federal Rule of Evidence 701 governs lay opinion evidence
and authorizes a witness “not testifying as an expert” to present
opinion evidence that is:

(1)“rationally based on the witness's

perception”; (2)“helpful to clearly understanding the witness's
testimony or to determining a fact in issue”; and (3)“not based
on scientific, technical, or other specialized knowledge within
the scope of [Federal Rule of Evidence] 702.”

Fed. R. Evid. 701.

The court will not issue a blanket ruling excluding all lay
testimony regarding the Gateway Effect.

Rather, the better

course of action is to evaluate such testimony at trial, where
the court will have additional context to evaluate whether the

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proposed testimony satisfies Rule 701 and, as Judge Polster
noted, is otherwise admissible.
C.

Locations Outside Cabell County and City of Huntington
Defendants ask the court to bar plaintiffs from introducing

evidence of defendants’ prescription opioid shipments to places
outside Cabell County and the City of Huntington.

According to

defendants, such evidence is (1) irrelevant; (2) impermissible
“prior bad acts” evidence; (3) unfairly prejudicial; and (4) a
waste of judicial resources.
Of this type of evidence, Judge Polster concluded:
Defendants seek to exclude evidence regarding
opioid distributions and other acts that occurred in,
or had an impact on, locations outside the Track One
Counties. But evidence of what occurred outside the
Track One Counties is generally relevant to Defendants’
conduct within the Track One Counties, and the damages
allegedly caused therein. For example, the shipment of
suspicious orders to locations outside the Track One
Counties tends to show (and is thus relevant to)
whether Defendants shipped suspicious orders to the
Track One Counties. This is particularly true because
there is evidence that Defendants acted pursuant to
practices and policies that were national in scope.
Accordingly, the Court denies these motions.
* * *
Defendants assert evidence of opioid shipments to
places outside the Track One Counties is irrelevant and
unduly prejudicial, because Plaintiffs cannot show
these opioids “migrated” to the Track One Counties.
Plaintiffs disagree, pointing to Rafalski’s expert
testimony that Defendants had a “nationwide” and
“systemic” failure to report suspicious orders and
maintain effective controls against diversion, and knew
that opioids distributed in Florida were migrating to
Ohio. Defendants provide no valid grounds to exclude
evidence of these shipments.
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ECF No. 1149-1 at 8-9 (footnotes omitted).
On November 3, 2020, Judge Polster clarified his ruling in
this way:
Pharmacy Defendants assert “[t]he Court should bar
[evidence, testimony, or argument concerning alleged
conduct that occurred outside of Cuyahoga or Summit
Counties] unless Plaintiffs first establish — outside
of the presence of the jury — a foundation showing a
specific nexus connecting that extraterritorial conduct
to harm suffered by one of the Counties and a specific
Defendant’s distribution conduct.” . . .
As stated above regarding settlements, the Court
has addressed the relevance of various evidence from
outside the Plaintiff Counties and specifically ruled
that “evidence of national trends and national
shipments is relevant to demonstrate the national scope
of the opioid crisis.” . . . Notwithstanding this
prior ruling, Pharmacy Defendants assert that Track
One-B is different because (1) [Plaintiffs’ SOMS
expert,] Rafalski[,] does not offer any opinions about
most Track 1-B defendants,” . . . and (2) “Track 1-B
Pharmacy Defendants distributed only to themselves, and
not to third-party ‘pill mills’ or pain clinics.” . . .
The Court is not persuaded that there is any
reason to revisit its prior rulings on the issues of
extraterritoriality but it offers these clarifying
comments. The context of the Court’s prior rulings
were made with broad-scope aggregate evidence in mind.
What this means is, where evidence tends to show
nation-wide trends and shipments, national policies and
procedures, or systemic failures that are national in
scope and become clear in the aggregate, the Court will
generally permit such evidence—so long as it is
otherwise admissible under the Federal Rules.
Additionally, the Court will also generally allow
specific extraterritorial evidence that has some
demonstrable nexus to the Plaintiff Counties. For
example, evidence that a distribution center located
outside the Plaintiff Counties distributes prescription
opioids into them is admissible; and evidence that CSA
violations by distribution centers in other parts of
the country for failure to follow a national policy or
protocol also applicable to distribution centers that
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shipped to the Plaintiff Counties may also be
admissible. On the other hand, evidence that is
specific in nature and does not have a nexus to the
Plaintiff Counties, without more, will generally not be
permitted.
In re Nat'l Prescription Opiate Litig., No. 1:17-MD-2804, 2020 WL
6450290, at *18 (N.D. Ohio Nov. 3, 2020) (emphasis in original).
Defendants offer no persuasive reason to disturb Judge
Polster’s rulings on the issue of geographic scope.

The court

agrees with Judge Polster that evidence of conduct occurring
outside Cabell County and the City of Huntington “is generally
relevant to Defendants’ conduct within the Track [Two] Counties”
given plaintiffs’ allegations that systemic failures on the part
of defendants caused the public nuisance in those locations.
However, as Judge Polster cautioned, any extraterritorial
evidence offered by plaintiffs must have a demonstrable nexus to
Cabell County or the City of Huntington and/or tend to show
nation-wide trends and shipments, national policies and
procedures, or systemic failures that are national in scope.
With respect to the perceived deficiencies in the opinion of
plaintiffs’ expert James Rafalski that bear on this issue,
defendants are reminded that they will have broad latitude on
cross-examination to point out those deficiencies.
D.

Settlements
Defendants ask the court to preclude plaintiffs from

offering evidence or making arguments related to Defendants’

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settlements (1) in opioid-related litigation outside West
Virginia and (2) in administrative settlements with the federal
Drug Enforcement Administration (“DEA”) or other government
agencies.

According to defendants, these settlements are

inadmissible under Federal Rules of Evidence 408 and 403, and
irrelevant under Federal Rules of Evidence 401 and 402.
Of this type of evidence, Judge Polster wrote:
In this subgroup of motions, the movants seek to
exclude evidence of enforcement actions by, and related
settlements with, the DEA or other governmental
entities. Under Rule 408, evidence of “conduct or a
statement made during compromise negotiations” is not
admissible “to prove or disprove the validity or amount
of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction.” Fed. R.
Evid. 408(a). However, the Court may admit this
evidence for “another purpose,” such as to show a
particular Defendant’s knowledge or notice of potential
harm. Fed. R. Evid. 408(b) and Committee Notes on 2006
amendment.
Here Plaintiffs assert that evidence of prior
enforcement actions and settlements establish a pattern
of conduct that demonstrates: (1) Defendants knew their
SOM [suspicious order monitorning] systems were
inadequate and likely to cause harm; and (2)
Defendants’ conduct was intentional and persisted over
a lengthy period of time. The Court agrees this
evidence is relevant and permissible and therefore
denies these motions.
* * *
The Distributors seek to exclude evidence of
settlements they entered into with the DEA and the
State of West Virginia. Between 2007 and 2017,
AmerisourceBergen, Cardinal Health, and McKesson each
entered into one or more settlements with the DEA.
These agreements resolved accusations by the DEA that
the Distributors failed to maintain effective controls
against diversion in multiple facilities across the
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United States. Under the settlements, the Distributors
agreed to take specific measures to maintain compliance
programs to prevent diversion, i.e., to detect and
report suspicious orders and conduct due diligence or
not ship them. Moreover, at least two Distributors
(Cardinal and McKesson) subsequently faced additional
charges of failure to maintain effective controls, and
executed new settlements where they agreed to improve
their SOMS and admitted certain wrongdoing. For the
reasons discussed above, evidence of these agreements
is relevant and admissible to show, inter alia, the
Distributors’ knowledge of their duties under the CSA
and whether their conduct was in violation of those
duties.
ECF No. 1149-1 at 12-14 (footnotes omitted).

The court agrees

with Judge Polster that evidence regarding prior settlements is
not barred by either Federal Rule of Evidence 408 or 403.

Nor

can the court find that such evidence is necessarily irrelevant
to plaintiffs’ public nuisance claim.
III.
For the reasons discussed above, defendants’ motions in
limine are 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 29th day of April, 2021.
ENTER:

David A. Faber
Senior United States District Judge

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