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

Filing 1377

MEMORANDUM OPINION AND ORDER denying Plaintiffs' 1353 MOTION in Limine toPreclude Any Reference to the DEA Approving or Endorsing a Particular Defendant's SOM Program, as more fully set forth herein. Signed by Senior Judge David A. Faber on 5/26/2021. (cc: counsel of record who have registered to receive an electronic NEF) (hkl)

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 in Limine to
Preclude Any Reference to the DEA Approving or Endorsing a
Particular Defendant’s SOM Program.

See ECF No. 1353.

That

motion is fully briefed and ripe for decision.
In their motion, plaintiffs ask the court to exclude “any
statements purporting to ‘approve’ or ‘endorse’ a Defendant’s SOM
[Suspicious Order Monitoring] program” because they argue that
such evidence is “not relevant to any issue in this case” and is
“not probative of the scope of Defendants’ duties under the CSA,
of whether any Defendant violated those duties, nor of whether

such violations were knowing or intentional.”

ECF No. 1353 at 9.

Defendants argue that this type of evidence is relevant and
admissible.

The court agrees with defendants.

As Judge Polster found in the MDL when confronted with a
similar motion:
At the pretrial hearing, the Court informed the parties
that it intends to have “a very wide strike zone” for
evidence about what the federal government, the DEA,
and the Food and Drug Administration (“FDA”) did or did
not do in connection with opioid regulation, as this
information is an essential part of the story regarding
the claims and defenses in this case. . . .
Specifically, the Court stated:
The facts are the facts. Each side is going
to use those facts in their narrative for the
jury and for public consumption, and [the
Court is] going to let both sides have a
great deal of latitude on that. We’re
obviously not going to have witnesses
purporting to tell the jury what the law is,
but in terms of what the DEA and FDA did or
didn’t do, and what implications that would
have, [the Court is] going to let both sides
have at it.
Consistent with this “very wide strike zone,” the Court
will generally admit evidence relating to action or
inaction taken by the DEA or other governmental
entities, subject to objections of undue prejudice raised in the conte
ECF No. 1149-1 at 12-13 (internal citations omitted).
Like Judge Polster, the court considers the DEA’s action or
inaction to be “an essential part of the story” regarding
plaintiffs’ public nuisance claim.
motion is DENIED.

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For this reason, plaintiffs’

The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record who have registered to
receive an electronic NEF.
IT IS SO ORDERED this 26th day of May, 2021.
ENTER:

David A. Faber
Senior United States District Judge

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