SEATTLE (Legal Newsline) - King County Superior Court Judge Michael Scott on Tuesday rejected a bid to toss out a case by lawyers defending three of the country’s biggest opioid drug distributors, accused of causing an epidemic in Washington State.
Scott said the trial will continue even though the defendant attorneys presenting their arguments to dismiss had made “good points.”
“This court does not have the basis to dismiss the claims of the plaintiffs,” Scott explained. “I have decided to render a judgment on these issues until the close of the case. It is my discretion. We will proceed with the presentation of the defendant’s case and any rebuttal the state may have.”
The State of Washington last week rested its case. This week defendant attorneys called their own witnesses to the stand.
The trial in Seattle is being streamed live courtesy of Courtroom View Network.
Prescription drug distributors McKesson, Cardinal Health and AmerisourceBergen Corp. are accused of irresponsibly over-promoting and distributing opioid drugs to pharmacies and doctors' offices that led to hundreds of overdose deaths in the state. The Washington State Department of Health estimated 1,200 in 2020.
Distributors take pills from the manufacturers and supply them to hospitals, doctor’s offices and pharmacies. The most commonly shipped opioid drugs include OxyContin, Hydrocodone, methadone and fentanyl.
Washington State Attorney General Bob Ferguson is asking for $32 billion in damages to enact anti-drug programs, but a state victory could result in a much higher award when surrendered profits and penalties are added in.
Lawyers defending the three companies asked Scott to dismiss the case saying the plaintiffs had failed to prove a single example of wrongful or illegal behavior, that all three companies had anti-drug diversion programs in place and reported suspicious orders as the U.S. Drug Enforcement Administration (DEA) requested. They said the charges, violations of the Consumer Protection Act (CPA), Controlled Substances Act (CSA), and for creating a public nuisance were false. Defense attorneys argued that the epidemic was caused by societal abuse of illegal drugs like heroin and more recently fentanyl, and not by distributors legally supplying opioids for the prescriptions of doctors to treat pain.
Motions were filed to dismiss the case, individually on behalf of each of the defendants and one joint motion for all three. On Monday attorneys for the defense made their statements to dismiss.
State attorneys responded to the defense claims, saying the companies failed to provide due diligence in checking for suspicious drug orders. That inadequate numbers of staffers were overwhelmed with suspicious orders (70 in a day) they had neither the time nor resources to adequately check. Suspicious orders were checked only with a customer questionnaire checklist, no proper investigation or follow-up. As a result they argued, drugs were shipped despite being red-flagged as suspicious and diversion of the drugs into the wrong hands occurred.
On Wednesday, senior vice president of corporate security and regulatory affairs for AmerisourceBergen, Chris Zimmerman, testified.
In 2007, the company's Orlando, Fla. distribution center had its federal licence suspended by the DEA for allegedly selling large quantities of opioids to an internet "rogue" pharmacy. Company officials signed an agreement with the DEA promising to establish an improved drug order checking system. The license was renewed and drug shipments by the company resumed.
Defense attorney Bob Nichols exhibited a chart from a conference held with DEA officials that read, “AmerisourceBergen’s (anti diversion) program is what the DEA expects to be a standard in the (opioid distribution) industry.”
Another chart said the company in 2007 had reviewed 40,000 orders and that 1,393 had been identified as suspicious.
“Did the DEA raise any concerns about the numbers?” Nichols asked.
“No,” Zimmerman answered.
Zimmerman said the suspicious order checking was enhanced in the period after 2007 including the performance of two program assessments each year of distribution centers and an annual audit.
“Do your people take their responsibility (checking orders) seriously?”
“Yes,” Zimmerman told Nichols.
On cross examination Mike Pendell, a state attorney, asked Zimmerman that if he knew the order checking system was not working properly, it would be wrong?
“What part (not working)?” Zimmerman asked.
“Any part. If the DEA said so,” Pendell added.
“That’s a hypothetical,” Zimmerman responded.
“You want the program to work.”
“As designed, yes,” Zimmerman said.
“Do you agree the DEA provides guidance?” Pendell asked.
“Yes,” Zimmerman said.
“You have relied on that guidance?”
“Yes.”
Zimmerman was shown a document that stipulated that upon identification, a suspicious drug order (larger or more frequent) must be reported to the DEA before shipment of the order.
“This was a correct recitation going back to 1999?” Pendell asked.
“Yes," Zimmerman said. "The requirement was to report when discovered.”
Zimmerman indicated that drug order checkers had to implement their anti-diversion program in a manner that did not improperly deny a doctor and patient the medications the patient depended on.
Pendell said releasing orders that were suspicious without the proper investigation would not be consistent with the responsibility of the company.
"We checked orders on a daily basis," Zimmerman said. "Our assumption is not that they (pharmacies) are all bad actors. We report to the DEA to take action if necessary."
"Do you expect them (checkers) to operate on an assumption (it's not a bad order)?" Pendell asked.
"I expect them to do the best they can," Zimmerman said.
Pendell said a suspicious order needed to be flagged and looked into even if it meant holding up the shipment to the customer.
"Yes," Zimmerman agreed.
"What constitutes an out-of-whack order?"
"One of extreme unusual size," Zimmerman said.