AmerisourceBergen Drug Corp. CEO Steven H. Collis must give a deposition in the second bellwether trial in federal multidistrict litigation set to start in October.
Virginia Special Master Christopher C. Wilkes in the US District Court for the Southern District of West Virginia wrote a nine-page order, rejecting the drug maker’s argument that the testimony would be inconvenient and burdensome for Collis.
The opioid epidemic in West Virginia is documented in a Pulitzer Prize-winning newspaper series, triggered a Congressional investigation, spawned lawsuits brought by all 55 counties in West Virginia (including the Attorney General) in federal and state court.
The ruling came on June 29, 2020, in The City of Huntington and Cabell County Commission v. AmerisourceBergen Drug Corporation, Civil Action No. 3:17-01362. A bench trial before US District Judge David A. Faber starts October 19, and distributor Cardinal Health Inc. is also a defendant.
AmerisourceBergen (ABDC) is one of the big three opioid wholesalers and is facing 2,811 lawsuits before US District Judge Dan A. Polster in MDL 2804 IN RE: National Prescription Opiate Litigation in the Northern
District of Ohio
Wilkes said the importance of the issues in the case are “paramount and unparalleled,” and the amount of money at stake is potentially hundreds of millions of dollars and “unquestionably significant.” Therefore, the benefits of his testimony outweigh any burden.
“When the scales of justice are balanced, the tragic backdrop of this potentially momentous litigation justifies the deposition of ABDC’s chief executive officer,” the order says.
ABDC and Collins tried to hide behind the “apex doctrine,” which applies to a specific subset of deposition notices that demand the appearance of high-level executives or high-ranking government officials to prevent harassing or burdening top execs.
That argument went nowhere because the Fourth Circuit has not adopted the apex doctrine, nor commented on its validity.
Besides, Collis voluntarily testified before the Congressional Subcommittee on Oversight and Investigations of the US House of Representatives on May 8, 2018.
“It received sworn testimony from and posed written questions to ABDC Chairman, President, and CEO, Steven H. Collis. The purpose of the hearing was to “examine the role that [ABDC] may have played in contributing to the opioid epidemic as well as distribution practices specific to West Virginia,” the order states.
“Mr. Collis’ written and verbal answers to Congress which demonstrate core competence, personal involvement and direct knowledge of the factual issues the Court must decide during the bench trial,” says the order.
Further, “Collis has not submitted an affidavit indicating that he doesn’t have personal knowledge of the facts, or explained why sitting for the deposition would place “extraordinary demands on his time,” the order states.
The City of Huntington is represented by Anne McGinness Kearse, Joseph F. Rice, Linda Singer, and David I. Ackerman of Motley Rice LLP and by Charles R. “Rusty” Webb of The Webb Law Centre PLLC.
Attorneys for the Cabell County Commission include Paul T. Farrell Jr. of Farrell Law, Anthony J. Majestro of Powell & Majestro PLLC, and Michael A. Woelfel of Woelfel & Woelfel LLP.