The distribution companies argue the Drug Enforcement Administration, doctors’ prescribing habits and West Virginians’ history of poor health as the reasons behind the shipments.

After 32 days of testimony from witnesses, the plaintiffs rested their case Thursday, which was followed by a day of arguments from the defense, who seek to have the case tossed out.

A sharp statement by U.S. District Court Judge David A. Faber, the cases’ decider, set the tone at the beginning of Thursday’s arguments, begging the question if the public nuisance law was broad enough to address the plaintiffs’ cause of action, which seeks $2.54 billion to abate the opioid crisis over a 15-year period.

Faber, who is the ultimate decider in the bellwether bench trial, has been engaging with witnesses and attorneys since the trial began in early May, but his interest was heightened as he grilled plaintiff attorneys about the theory on which they built their case.

McKesson attorney Timothy Hester said the law did not cover the plaintiffs’ claims because they are attempting to disguise a damages case as an abatement one after having waived their claims for damages in exchange for a bench trial, he said.

“They are stuck in a box,” he said.

The abatement plan calls for prevention, treatment, recovery and the needs of special populations. The plan includes claims for future nuisance and treatment for future opioid use disorder (OUD) population, for which it would be improper for the judge to make them pay, Hester said.

The attorneys argued conduct must be proximate, not a remote cause of injury, for there to be guilt. They argued the proximate conduct was that of doctors over prescribing, illicit drug dealers and others. The plaintiffs lean solely on the high volume of pills being shipped to the county, the defense said, but the number of pills distributed matched the number of pills prescribed.

Hester said the plaintiffs bear a heavy burden of proving harm is reasonably certain in the future as a result of the defendants’ conduct. Hester said the plaintiffs did not prove during the trial future conduct by the defendants, and they don’t even know if the defendants would be shipping opioids to the county in the future.

The defendants have already highly reduced the number of pills shipped to the community, which remedies the future claims, he said.

Majestro said the defendants want to blame the people below and above them in the supply chain, but when it comes down to it, they were registrants with the DEA who had the same heightened responsibilities as others in the chain.

He pointed to a deposition the judge listened to in chambers in which someone testified the existence of an annual opioid quota set by the DEA did not negate the defendant’s duty to monitor and stop suspicious orders.

Hester said the court must avoid giving the two an “improper windfall.” He said it’s clear the community has a strong recovery community with the funds they have now.

The defendants did not say the plaintiffs did not prove their case; their argument is that their conduct was too remote for them to be held culpable, Majestro said.

Lane Heard, an attorney for Cardinal Health, said federal courts lack the power to grant relief not narrowly tailored to the wrongful conduct.

The defendants have continuously throughout the trial attempted to divide the opioid crisis into two — a prescription pill one and an illicit opioid drug one. The plaintiffs seek abatement for all opioid drug abuse and effects, but the defense argued it would be improper to blame the defendant’s for the illicit market. Several epidemiologists testified there is only one opioid crisis, which cannot be divided.

Heard said the plaintiffs want remedies for future addiction and the wrongs of others, remedies that are remote from Cardinal Health’s conduct and are instead related to the root causes of drug abuse.

Faber said the plaintiffs were seemingly casting a net too wide and called the gateway theory connecting heroin to prescription pills thin. Farrell said four out of five people who use heroin started opioid use with prescription pills.

He said what sets opioid use disorder aside from other harms, such as smoking, is that people with OUD are going into the community and creating community harms via crime, the spreading of disease and more.

Farrell asked the judge to imagine all people affected by the opioid use disorder placed in a pond polluted by multiple sources: community members, past and present prescription and illicit opioid users, governments, etc.

A company could be forced to clean the pond, but it would also screen out the pollutants dumped by others.

“It doesn’t negate the fact that a treatment facility is needed to begin with to treat this condition,” he said.

Neither the city nor the county run recovery programs or fund them fully, thus they cannot be awarded money to do so, and the plaintiffs did not evaluate the programs specifically to determine if they were enough, Hester said. Because of that, the plaintiffs did not give the judge enough guidance the court to know what type of relief would be proper, he said.

“There’s still an opioid epidemic in Cabell County, so whatever they are doing is not enough. (The current money) being spent is a drop in the bucket compared to what it’s going to take to eradicate the epidemic,” Majestro said.

Majestro said it’s not necessary for the plaintiffs to look at what the city and county are doing, because it is not enough. Most importantly, he said, what is happening now is not being done by the defendants, who caused it.

While the three defendants have reached several settlements with the DEA after alleged misconduct over the years, the defendants said those settlements did not prove guilt or wrongdoing by the companies.

The plaintiffs believe the evidence and testimony shows the trio had a systemic failure of their suspicious order monitoring programs; each defendant said they believe it proved the opposite.

AmerisourceBergen attorney Robert Nicholas said ABDC was sending shipment numbers to the DEA within two days, but the DEA witness said the amount of data was overwhelming and they didn’t know what to do with it.

The defendants said while the DEA took action against many of their various warehouses, none of them shipped pills to Cabell County.

“There’s no testimony the defendants’ policies were any different here than they were anywhere else,” Majestro said.

McKesson attorney Christian Pistilli said once you remove McKesson’s VA hospital shipments from the equation, it only accounts for less than 6% of the market share of opioids and much lower than the West Virginia average.

Faber took the defense’s motion under advisement and said he may rule on it later. The case will continue Friday, July 3, when the defense calls its first witness to the stand.