City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al
MEMORANDUM OPINION AND ORDER directing that Defendants' objection to 659 Discovery Ruling 9 is OVERRULED as more fully set forth herein; denying Defendants' 423 motion to compel discovery responses on opioid-related expenditures as more fully set forth herein. Signed by Senior Judge David A. Faber on 8/10/2020. (cc: counsel of record; interested parties) (hkl)
Case 3:17-cv-01362 Document 849 Filed 08/10/20 Page 1 of 11 PageID #: 17028
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
CIVIL ACTION NO. 3:17-01362
CORPORATION, et al.,
CABELL COUNTY COMMISSION,
CIVIL ACTION NO. 3:17-01665
CORPORATION, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ objection to the
Special Master’s Discovery Ruling No. 9.
(ECF No. 659.)
June 23, 2020, the Special Master entered an order denying
defendants’ motion to compel discovery responses on opioidrelated expenditures.
(ECF No. 621.)
This matter has been
fully briefed and is ripe for review by this court.
following reasons, defendants’ objection, (ECF No. 659), is
OVERRULED, and defendants’ motion to compel discovery responses
on opioid-related expenditures, (ECF No. 423), is DENIED.
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Factual and Procedural Background
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. 1
“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.
previous experience with multidistrict litigation, MDL 2804 was
assigned to United States District Judge Dan A. Polster.
id. at 1379. The JPML expressed its confidence in Judge
Polster’s ability to manage this complex litigation, indicating
On October 26, 2017, President Trump directed the Secretary of
Health and Human Services to declare the opioid crisis a Public
Health Emergency. See Combatting the National Drug Demand and
Opioid Crisis, 82 Fed. Reg. 50305 (Oct. 26, 2017). According to
that Presidential Memorandum, as of that date, “more than
300,000 Americans have died of an opioid overdose since 2000[,]
. . . more than 2.1 million of our fellow citizens are addicted
to opioids, and in 2014 more than 1,500 people were treated each
day in emergency departments for opioid-related emergencies.”
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that it had “no doubt that Judge Polster will steer this
litigation on a prudent course.”
Id. at 1379-80.
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).
In his management of the MDL, Judge
Polster has, among other things, overseen “discovery involving
over 450 depositions and over 160 million pages of documents”
and ruled “on innumerable discovery motions, ranging from the
trivial to motions to compel production of documents from the
United States Drug Enforcement Agency”.
Id. at *2.
In January, these two cases, designated in the MDL as
“Track Two” cases, were remanded to this court for further
The remanded cases were significantly narrowed, in
both the number of claims and defendants.
public nuisance claims against the “The Big Three” distributor
defendants — AmerisourceBergen Drug Corporation, McKesson
Corporation, and Cardinal Health, Inc. — are before this court.
On March 9, 2020, this court entered an Order of Appointment,
pursuant to Fed. R. Civ. P. 53(a)(1)(A), which appointed the
Honorable Christopher C. Wilkes as Special Master to aid with
discovery matters and/or disputes.
(ECF No. 200.)
Rule 53(f)(2), any party may file an objection to an order,
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finding, report, ruling, or recommendation by the Special Master
within 7 calendar days of the date it was filed.
A. Defendants’ Motion to Compel
On May 15, 2020, defendants filed a motion to compel
discovery, seeking information regarding plaintiffs’ opioidrelated actions and expenditures, and information regarding
plaintiffs’ requested abatement damages remedy.
(ECF No. 423.)
Defendants argued that plaintiffs had not delivered sufficient
information or documents regarding “(a) how much money they
seek, (b) what the separate components of the “abatement
damages” are, or (c) how the dollar amounts of the components or
the overall amount were calculated,” (ECF No. 494), and that
this information was necessary because “predicting what
abatement costs may be incurred in the future likely requires
determining what abatement costs have been incurred in the
(ECF No. 423.)
Defendants also argue that Special
Master Wilkes’ order in Discovery Ruling No. 1 (“DR1”), (ECF No.
248), required plaintiffs to give defendants this information
when DR1 ordered compliance with interrogatories 10 and 11 and
request for production 16.
(See ECF No. 423.)
their response opposing the motion on May 27, 2020.
Plaintiffs argue that they have satisfied their discovery
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obligations under DR1 2 as to interrogatories 10 and 11 and
request for production 16, and will disclose additional
abatement information through expert witness testimony.
On June 23, 2020, Special Master Wilkes entered Discovery
Ruling 9 (“DR9”), denying defendants’ motion.
(ECF No. 621.)
Special Master Wilkes denied the motion because he found that
plaintiffs satisfied their discovery obligations:
“Plaintiffs submitted extensive answers to
interrogatories, produced nearly 800,000 documents and
identified scores of fact witnesses which provide ripe
ground for Defendants to understand, investigate and
discover the “opioid related actions” the city/county
has taken in response to the opioid epidemic. The
City of Huntington and Cabell County Commission have
produced spreadsheets specifically referencing budgets
and accounting documents which provides ample
reference points for further discussion during fact
Special Master Wilkes also ruled that because plaintiffs are
seeking an abatement remedy, which consists of “prospective
future costs to abate the [opioid] crisis,” In re Nat’l
Prescription Opiate Litig., No. 1:17-md-2804, ECF No. 2519 (Aug.
26, 2019), any prior amounts and/or allocation of abatement
spending have only marginal value in determining the future
costs of abatement.
Plaintiffs also note that only plaintiff Cabell County
Commission’s responses to interrogatories 10 and 11 and request
for production 16 were the subject of DR1.
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Defendants timely filed objections to DR9 on July 1, 2020,
arguing that discovery of past abatement expenditures is
necessary for defendants because such information bears directly
on the plausibility of any future abatement costs that
plaintiffs seek as their remedy.
(ECF No. 659.)
object that the availability of expert discovery does not solve
the problem because they are entitled to discover facts that
could contradict an expert’s opinion on an abatement remedy, and
that under the court’s scheduling order, the period for expert
discovery is highly truncated, as defendants’ expert reports are
due only ten days after they receive plaintiffs’ expert reports.
Defendants also contend that Special Master Wilkes’s
observation in DR9 that “whatever efforts and expenses
Plaintiffs have put forth in attempting to remedy [opioidrelated issues] have not been successful” was legal error, and
an abuse of discretion.
Plaintiffs responded on July 6,
2020, explaining that Special Master Wilkes in DR9 did not deny
defendants’ motion because plaintiffs’ past abatement costs were
totally irrelevant, but he so ruled because plaintiffs’
discovery responses to interrogatories 10 and 11 and request for
production 16 were reasonable and sufficient.
(ECF No. 675.)
Additionally, plaintiffs note they provided defendants with a
preliminary list of categories of abatement damages on June 13,
(See ECF No. 659-1.)
Plaintiffs further argue that they
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are entitled to rely upon expert witness testimony because “an
abatement remedy – unlike an award of compensatory damages –
cannot be computed before trial and the scope of the remedy will
depend on evidence and testimony offered by expert witnesses at
(ECF No. 675.)
Standard of Review
As provided in Rule 53(f)(4) and (5), the court shall
decide de novo all objections to conclusions of law made or
recommended by the Special Master; and the court shall set aside
a ruling by the Special Master on a procedural matter only for
an abuse of discretion.
To the extent the Special Master enters
an order, finding, report, ruling, or recommendation regarding
an issue of fact, the court shall review such issue de novo, if
any party timely objects pursuant to the Rules and within the 7
calendar day time period set forth herein.
See Rule 53(f)(3).
Ordinarily, Federal Rule of Civil Procedure 26(a) requires
plaintiffs to provide, at the outset of discovery, “a
computation of each category of damages claimed” and to produce
“the documents or other evidentiary material, unless privileged
or protected from disclosure, on which each computation is
based, including materials bearing on the nature and extent of
Fed R. Civ. P. 26(a)(1)(A)(iii).
because abatement is as an equitable remedy within the court’s
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discretion to fashion, abatement is not subject to the
computation requirements of Rule 26.
See, e.g., Scott v. City
of Phoenix, No. CV-09-0875-PHX-JAT, 2011 WL 1085992, at *4 (D.
Ariz. Mar. 24, 2011) (“Plaintiff's request for declaratory
judgment, injunctive relief, and nominal damages is not waived
by Plaintiff's failure to include computations of these
equitable remedies in Plaintiff's Second Amended Disclosure
These forms of relief are not capable of the
“computation” required for the Rule 26(a)(1)(iii) initial
Thus, plaintiffs are not required to compute
their precise abatement remedy at this stage in the litigation.
Plaintiffs correctly assert that an abatement remedy will depend
on evidence and testimony offered by expert witnesses at trial.
Cf. In re Nat'l Prescription Opiate Litig., No. 1:17-MD-2804,
2019 WL 4043938, at *2-3 (N.D. Ohio Aug. 26, 2019) (explaining
that the court will rely on expert testimony to help fairly
construct a future abatement remedy award).
This does not absolve plaintiffs of the need to provide
defendants with some basic information and factual basis upon
which plaintiffs will build their abatement remedy, and to
provide defendants some information about past abatement
measures taken and expenditures made.
Defendants have an
interest in obtaining this information generally to be able to
question plaintiffs’ experts and to prepare their own experts to
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respond to and counter plaintiffs’ proposed abatement remedy.
Special Master Wilkes ordered as much in DR1, when he ordered
Cabell County to supplement its responses to interrogatories 10
and 11 and request for production 16.
(See ECF No. 248.)
The court has reviewed the record and finds that plaintiffs
have sufficiently complied with their discovery responsibilities
as to interrogatories 10 and 11 and request for production 16.
The court notes that plaintiffs have produced spreadsheets
specifically referencing budgets and accounting documents
containing expenses and programming to abate the opioid crisis.
For example, plaintiff City of Huntington has outlined at least
four pages worth of initiatives – including community
partnerships, public health programs, law enforcement
initiatives, grant information, and proposed solutions and plans
- that it undertook in an effort to address the hazards to
public health and safety arising from the opioid crisis.
Specific to expenditures, the City of Huntington produced annual
reports from the police department and fire department, wage and
benefit agreements, salary and payroll information, grant
materials, City of Huntington budgets, and departmental-specific
Plaintiff Cabell County Commission has identified and
produced budget and expense information for the Office of the
Prosecuting Attorney, the Sherriff’s Department, and Emergency
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Medical Services, each of which dedicated resources to
responding to the opioid epidemic.
Furthermore, on June 13, 2020, plaintiffs provided
defendants with a preliminary list of categories of abatement
damages that plaintiffs’ experts had prepared.
(See ECF No.
While these categories were not detailed, they properly
inform defendants of the scope of the abatement remedy sought.
Combined with the budgetary documentation already disclosed by
plaintiffs, these disclosures provide ample reference points for
further discussion during fact witness and expert depositions.
Plaintiffs are entitled to rely upon expert testimony for any
further abatement-related strategy and calculation inquiries. 3
Lastly, the court will not opine whether Special Master
Wilkes’s observation in DR9 that “whatever efforts and expenses
Plaintiffs have put forth in attempting to remedy [opioidrelated issues] have not been successful” was legal error or an
abuse of discretion. 4
(See ECF No. 621.)
The court finds that
Moreover, this court on August 6, 2020 granted defendants’
motion to modify expert discovery deadlines. (ECF No. 834.)
Defendants now have sufficient time to review plaintiffs’
experts’ reports and complete their own.
The court does note there is a general factual basis to support
Special Master Wilkes’ statement. For example, on October 26,
2017, President Trump directed the Secretary of Health and Human
Services to declare the opioid crisis a Public Health Emergency.
See Combatting the National Drug Demand and Opioid Crisis, 82
Fed. Reg. 50305 (Oct. 26, 2017). According to that Presidential
Memorandum, as of that date, “more than 300,000 Americans have
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the comment was not central to his ruling in DR9.
the court has reviewed DR9 de novo, and finds in favor of the
plaintiffs on entirely separate grounds from the issue of
whether prior abatement efforts have or have not been
For the reasons discussed above, defendants’ objection to
Discovery Ruling 9, (ECF No. 659), is OVERRULED.
motion to compel discovery responses on opioid-related
expenditures, (ECF No. 423), is likewise DENIED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and interested parties.
IT IS SO ORDERED this 10th day of August, 2020.
David A. Faber
Senior United States District Judge
died of an opioid overdose since 2000[,] . . . more than 2.1
million of our fellow citizens are addicted to opioids, and in
2014 more than 1,500 people were treated each day in emergency
departments for opioid-related emergencies.” Id. However, the
court makes no findings at this juncture as to the specific
effectiveness, or lack thereof, of plaintiffs’ specific past
attempts to abate the opioid crisis.
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