ABC AmerisourceBergen Corp

By Sara Randazzo 

Drugmakers and distributors accused of triggering the opioid crisis argued Wednesday that a coming trial will unfairly malign them for running legal businesses and that the trial itself is shaping up to be unnecessarily chaotic.

The plaintiffs, two Ohio counties, have identified 85 witnesses and tens of thousands of documents they could present to a jury, despite having just 100 hours to put on their case, court filings show.

"Clearly, Plaintiffs are keeping all their options open and seeking to maintain the element of surprise," Cardinal Health Inc. wrote in a Wednesday court filing arguing it hasn't been given enough information to know how to defend itself against claims that it and other companies conspired to cause widespread opioid addiction.

Cardinal is among more than half a dozen companies slated to go on trial late next month in federal court in Cleveland, along with fellow drug distributors McKesson Corp. and AmerisourceBergen Corp. and drugmakers Johnson & Johnson and Teva Pharmaceutical Industries Ltd.

The companies will face off against Ohio's Cuyahoga and Summit counties, whose cases were selected to go to trial first from around 2,000 lawsuits filed by cities and counties centralized in the courtroom of U.S. District Judge Dan Polster.

A Wednesday deadline gave the pharmaceutical companies and counties a final chance to preview their courtroom plans and ask the judge to limit what evidence the jury will hear over the two-month trial.

Johnson & Johnson, which faces a $572 million judgment from an earlier opioid-crisis trial in Oklahoma, argued in its filing that while it "fully recognizes the opioid crisis that exists in this country," the flow of illegal heroin and fentanyl into the communities is more to blame, not their prescription drugs.

The company also cited "unscrupulous doctors and internet pharmacies operating as drug-trafficking organizations," the diversion and abuse of oxycodone and hydrocodone pills, and state and federal governments that have struggled to balance patient needs with warnings of abuse.

Other defendants are also seeking to distance themselves from the problem, arguing they can't be held liable because they followed federal guidelines around the manufacture and distribution of the powerful painkillers.

The trial will test legal claims that the companies violated state and federal conspiracy laws and that the opioid epidemic is a "public nuisance" caused by the defendants. The counties are expected to ask for billions of dollars in recovery, which they said in a Wednesday filing is needed, otherwise "individuals will continue to misuse and become addicted to opioids at historically high levels."

Walgreens Boots Alliance Inc., whose Walgreens branch until 2014 operated as a distributor as well as a pharmacy, said the counties are attempting to conflate evidence against very different types of companies. "Far from being monolithic, Defendants operated entirely different businesses occupying different parts of the supply chain," the company argued.

The landmark trial initially included even more legal claims and corporate defendants but has been slowly slimmed down at the request of Judge Polster.

One major target, Purdue Pharma LP, filed for bankruptcy in recent weeks, which removed it from the trial. Three other drugmakers, Endo

International PLC,   Allergan PLC and Mallinckrodt PLC, reached settlements to avoid the trial, though they continue to face lawsuits from hundreds of other municipalities. 

Earlier this week, the two counties still had 150 potential witnesses, but that list was reduced to 85 on Wednesday, court filings show. It includes former Drug Enforcement Administration employees, current and former employees of the drugmakers and distributors, and experts in areas such as addiction and how best to craft a plan to reduce opioid overdoses.

Cardinal Health argued Wednesday that the 100 total hours allotted for all of the defendants to present their defense is so truncated it violates the company's due process rights.

The companies and plaintiffs presented lists of questions Wednesday they think should be asked of potential jurors, including some aimed at rooting out bias against large corporations and others probing their views on opioid medications. The court has already dismissed 500 potential jurors based on written questionnaires, court filings show.

Virtually every state has also filed an opioid-crisis lawsuit, though those are largely proceeding in state courts and haven't come under the purview of Judge Polster.

Ohio's attorney general, Dave Yost, is asking an appellate court to halt next month's trial, arguing the two counties don't have the authority to bring the claims and that the trial will interfere with his own lawsuit.

The Sixth U.S. Circuit Court of Appeals on Wednesday ordered the counties and Judge Polster to respond to the attorney general's concerns within seven days.

Write to Sara Randazzo at sara.randazzo@wsj.com

(END) Dow Jones Newswires

September 25, 2019 17:04 ET (21:04 GMT)

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