Opioid trial finally starts next week, with Gupta’s testimony still being debated

A landmark federal trial about how a flood of prescription pills affected West Virginia communities will start next week.

U.S. District Judge David Faber

“I’ll see everybody Monday,” U.S. District Judge David Faber told lawyers on all sides at the end of a status hearing today.

Faber will be presiding over a bench trial about how much wholesalers McKesson, Cardinal Health and AmerisourceBergen should be accountable for the costs of opioid addiction in West Virginia communities.

The wholesalers deny wrongdoing.

The plaintiffs include the Cabell County Commission and City of Huntington, which contend the companies compounded the drug crisis by saturating the region with shipments of prescription painkillers.

The lawsuit, filed in 2017, blames the “Big Three” for fueling the crisis by distributing nearly 100 million opioid pills in Cabell County over a 10-year period.

The case was part of a group of similar cases being considered in federal court in Cleveland but was released back to U.S. District Court in West Virginia’s Southern District in late 2019. The trial’s initial start date was delayed while the coronavirus pandemic was at its worst.

On Wednesday, Judge Faber assured the case will actually go to trial by denying motions for summary judgment.

A hearing this morning dealt with some of the ground rules of the trial.

Faber said it will begin at 9:30 a.m. Monday. The judge set guidelines of three hours of opening statement for each side.

On the days after that, the judge anticipates starting at 9 a.m. and going until noon. The trial would then resume each day at 2 and go to 5 p.m.

Faber has already set a limit of 30 people in the courtroom because of ongoing precautions from the covid-19 pandemic. That will limit attendance to the judge, lawyers, court officials and witnesses.  An overflow courtroom is being set up for media and members of the public.

Today, the many lawyers in the case briefly discussed their positions in the courtroom as the trial is conducted.

Faber said he would prefer the attorneys speak to him from a podium. But the lawyers noted that they will sometimes make presentations on a screen and hoped to be able to walk around the courtroom while using lapel microphones. Faber agreed that makes sense.

Dr. Rahul Gupta

One remaining issue is the expert testimony of Rahul Gupta, the former state health officer. That’s part of an ongoing debate about the scope of testimony by health experts. 

Lawyers for the drug wholesalers want to limit Gupta’s testimony to just what he experienced and observed during his time dealing directly with the communities affected by opioids.

They contend “Gupta’s high-level involvement in opioid-related projects do not give him carte blanch to opine as a hybrid expert on any and all issues related to the opioid epidemic in West Virginia.”

Defense attorneys moved to exclude Gupta’s views on whether opioids are a gateway to illegal street drugs, causation issues such as whether oversupply of prescription drugs led to overdose deaths, how the opioid epidemic affected the foster care and education systems, and the nature of addiction.

“Dr. Gupta’s reliance on a combination of external sources, hearsay conversations and pure speculation are not appropriate bases for hybrid witness testimony as a matter of settled law,” the defense attorneys wrote.

Anthony Majestro

The plaintiffs attorneys haven’t yet responded. Anthony Majestro, representing the Cabell County Commission, said he will provide a response prior to the trial’s start.

“I have a response in the works,” he said. “I think we can get it to the other side before Sunday.”

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