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Attorneys outline ideal trial ahead of opioid meeting in Charleston

HUNTINGTON — For the first time in nearly three years, attorneys for the city of Huntington, Cabell County and the “Big Three” drug distribution companies will meet in Charleston on Monday to assess where a multimillion-dollar lawsuit lies and the possible scope of a trial over allegations that the drug companies created and fueled the drug epidemic locally.

While the two governments want a judge to be the decider in an eight-week trial staggered over the next year, the Big Three defendants — AmerisourceBergen Drug Corp., McKesson and Cardinal Health — refused to waive their right to a jury trial and said the length of the trial could be twice what the local governments want.

The lawsuits filed by Huntington and Cabell County argue the distributors breached their duty to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates coming into the states over the past several years — a duty the lawsuits claim companies have under the Controlled Substances Act of 1970.

From 2006 to 2014, 1.1 billion pain pills were supplied to West Virginia, with 261 million coming from Cardinal Health, 172 million from McKesson and 169 million from AmerisourceBergen. As the number of pills sent to the state decreased over the years, those who developed drug dependency issues turned to illicit street drugs, like heroin.

The lawsuit seeks payment to help remedy the problems drug dependency has caused in the area.

Huntington and Cabell County were among the first to file lawsuits against drug companies in 2017, but more than 2,500 others have since followed their lead. The last time the attorneys met in a Charleston courtroom was in May 2017, before a multidistrict litigation group was created and centered in Cleveland, Ohio, under one judge to better sort through all the cases.

With the Huntington and Cabell County cases sent back to West Virginia earlier this month, the sides are scheduled to meet at the federal courthouse in Charleston at 2:30 p.m. Monday, Jan. 27, for a conference in which they will update U.S. District Judge David A. Faber on where the case currently stands and where they believe its future is heading, including their idea of what a trial would look like.

In briefs written to the court this week, Huntington and Cabell County said they want to stagger the introduction of evidence by reserving the first full week of every month for trial proceedings. They believe it would be ready for trial in March.

The first week would be dedicated to reviewing opioid data of where pills were shipped within the county and city. The second would focus on testimony from the U.S. Drug Enforcement Administration.

The third, fourth and fifth months would call for witnesses regarding each of the Big Three’s involvement, with dedicated weeks for each individual defendant.

The sixth would be focused on the alleged “conspiracy” that the companies acted in concert with each other to cause harm. The seventh and eighth weeks would be devoted to the defendants’ alleged liability and the local impact they caused.

Cabell County’s attorney, Paul T. Farrell Jr., said while evidence exchange is essentially complete through week six, staggering the trial would allow a time frame to complete the rest of the discovery for the remaining two weeks. Farrell wrote that more than 162 million pages of documents have been exchanged, 300 third-party subpoenas issued and 550 depositions taken, among other things, for all the cases.

In contrast, the Big Three argued in their brief that the cases are not ready for trial and believe it would realistically take at least 18 months to prepare the cases for trial. The defendants said while the plaintiffs had received a plethora of evidence, much of which came from two Ohio cases that settled last year, the defendants only recently started to obtain evidence from the plaintiffs.

Discovery in those Ohio cases took 18 months, they said, although the court had initially set a nine-month deadline.

The defendants also wrote they were not willing at this time to waive their rights to a jury trial; however, they agreed that the trial should last an estimated eight to 16 weeks. Beyond that, they said it was too early to determine any trial details.

Farrell is the main attorney for Cabell County, while Charleston-based attorney Rusty Webb represents Huntington.

Farrell previously has said while he is pursuing a trial in the case, he will seek $500 million from the Big Three during settlement talks prior to the start of a trial.

Any money received from the case will be put into a trust controlled by a local board, and a plan for where the money would be spent has been made, he said.

The same three companies settled last fall with Cuyahoga and Summit counties in Ohio for $215 million in the final hour before the first trial was set to begin.

MU promotes community outreach with MLK Day of Service

HUNTINGTON — Marshall University honored the legacy of Martin Luther King Jr. on Friday with its third annual MLK Day of Service from 9 a.m. to 1 p.m.

Participants had a chance to better the community through a variety of outreach opportunities.

Activities included serving lunch at the Huntington City Mission, helping out at the Coalition for the Homeless, reading to children at Ebenezer Day Care, lending a hand at the food bank and more.

Those interested were required to register for their desired service prior to the start of the day in order to evenly distribute volunteers.

Anyone who missed the MLK Day of Service can find more information about volunteering in the Office of Community Outreach & Volunteer Services located in the MSC LEAD Center on the Marshall campus.

Dems say oust Trump or he’ll betray again

WASHINGTON — Closing out their case, House Democrats warned Friday in Donald Trump’s impeachment trial that the president will persist in abusing his power and endangering American democracy unless Congress intervenes to remove him before the 2020 election.

“He is who he is,” declared Rep. Adam Schiff, the chairman of the House Intelligence Committee. He told the senators listening as jurors that Trump put the U.S.-Ukraine relationship on the line in a way that benefited Russia just so he could take a political “cheap shot” at Democratic foe Joe Biden.

“You cannot leave a man like that in office,” Schiff said. “You know it’s not going to stop. … It’s not going to stop unless the Congress does something about it.”

Trump is being tried in the Senate after the House impeached him last month, accusing him of abusing his office by asking Ukraine for politically motivated probes of Biden and other matters while withholding military aid from a U.S. ally that was at war with bordering Russia. A second article of impeachment accuses him of obstructing Congress by refusing to turn over documents or allow officials to testify in the House-ensuing probe.

As Democrats finished their third day before skeptical Republican senators, Trump’s legal team prepared to start his defense, expected on Saturday. Trump, eyes on the audience beyond the Senate chamber, bemoaned the schedule in a tweet, saying “looks like my lawyers will be forced to start on Saturday, which is called Death Valley in T.V.”

Said Trump attorney Jay Sekulow: “We’re going to rebut and refute, and we’re going to put on an affirmative case tomorrow.”

Republicans are defending Trump’s actions as appropriate and are casting the impeachment trial as a politically motivated effort to weaken him in his re-election campaign. Republicans hold a 53-47 majority in the Senate, and eventual acquittal is considered likely.

Before that, senators will make a critical decision next week on Democratic demands to hear testimony from top Trump aides, including acting chief of staff Mick Mulvaney and former national security adviser John Bolton who refused to appear before the House. It would take four Republican senators to join the Democratic minority to seek witnesses, and so far the numbers appear lacking.

“This needs to end,” said Sen. Lindsey Graham, R-S.C., a Trump confidant.

With Chief Justice John Roberts presiding, Friday’s session opened with a sweeping and impassioned argument from Democrats that Trump’s actions with Ukraine were not unique but part of a pattern of “destructive behavior” now threatening the core foundations of American democracy.

Schiff told the senators that Trump has shown repeatedly that he is willing to put his personal political interests above those of the country he is sworn to protect.

The evidence shows, he said, that Trump bucked the advice of his own national security apparatus to chase “kooky” theories about Ukraine pushed by lawyer Rudy Giuliani, resulting in “one hell of a Russian intelligence coup” that benefited Vladimir Putin at U.S. expense.

This was not simply a foreign policy dispute, Schiff argued, but a breech of long-held American values for Trump to leverage an ally — in this case Ukraine, a struggling democracy facing down Russian troops — for the investigations he wanted ahead of 2020.

When the House started investigating his actions, Democrats said, Trump blatantly obstructed the probe. Even then-President Richard Nixon, they argued, better understood the need to comply with Congress in some of its oversight requests.

Schiff said that left unchecked, Trump, who insists he did nothing wrong, would seek foreign election interference again.

Drawing on historical figures, from the Founding Fathers to the late GOP Sen. John McCain and the fictional Atticus Finch, Schiff made his arguments emphatically personal.

“The next time, it just may be you,” he said, pointing at one senator after another. “Do you think for a moment that if he felt it was in his interest, he wouldn’t ask you to be investigated?”

The senators, though, appear as deeply divided as the nation, with Democrats ready to vote to convict the president and Republicans poised to acquit.

The impeachment trial is set against the backdrop of the 2020 election, as voters assess Trump’s presidency and his run for a second term. Four senators who are Democratic presidential candidates are off the campaign trail, seated as jurors.

A new poll from The Associated Press-NORC Center for Public Affairs Research showed the public slightly more likely to say the Senate should convict and remove Trump from office than to say it should not, 45% to 40%. But a sizable percentage, 14%, said they didn’t know enough to have an opinion.

One issue with wide agreement: Trump should allow top aides to appear as witnesses at the trial. About 7 in 10 respondents said so, including majorities of Republicans and Democrats, according to the poll.

Trump is the third president in American history to face an impeachment trial. Neither Andrew Johnson in 1868 nor Bill Clinton in 1999 was removed by the Senate. Nixon left office before a House vote that was likely to impeach him.

The House mounted its Trump case after a government whistleblower complained about his July 2019 call with Ukraine.

The House relied on testimony from current and former national security officials and diplomats, many who defied White House instructions not to appear.

Evidence presented in the House probe has shown that Trump, with Giuliani, pursued investigations of Biden and his son, Hunter, who served on a Ukrainian gas company’s board, and sought a probe of a debunked theory that Ukraine interfered in the 2016 U.S. election.

It’s a story line many in the president’s camp are still pushing. Giuliani, in an appearance Friday on “Fox & Friends,” insisted he would present evidence on his new podcast of “collusion going on in Ukraine to fix the 2016 election in favor of Hillary” Clinton.

Perry Bennett/West Virginia Legislative Photography 

Del. Eric Porterfield, R-Mercer, rises to speak in support of a bill to allow those with physical disabilities to vote via electronic means Jan. 24, in Charleston.

Cabell officials write letters opposing possible reduced air traffic control

HUNTINGTON — Cabell County officials are asking the Federal Aviation Administration to exclude the Huntington Tri-State Airport from a study into the cost-effectiveness of operating the airport’s air traffic control towers 24 hours a day.

The conclusion of the study could lead to a reduction in hours for air traffic controllers at night, which would hurt the airport financially and create safety risks, the officials said.

In November, the Federal Aviation Administration (FAA) sent a memo to 15 airports across the country identifying them as potential candidates for reduced hours at their control towers.

Those airports included the Huntington Tri-State Airport and Yeager Airport in Charleston.

As part of this, Tri-State Airport staff would work with the FAA on a study into the control tower’s staffing and utility costs, as well as a cost/benefit analysis of keeping it open 24 hours a day. A safety review will also be conducted with help from the FAA’s Quality Assurance Group.

Earlier this month, the FAA backed off plans to include Yeager Airport as a candidate for reduced hours after Kanawha County officials and several congressional leaders expressed safety concerns for the West Virginia Air National Guard and other military aircraft taking off and landing there at night, the Charleston-Gazette Mail reported.

Within the past two years, officials also counted about 315 flights arriving after 11 p.m. and they cited the planned construction of the Marshall University School of Aviation as other reasons for 24-hour operation.

Now Cabell County officials are hoping they can similarly convince the FAA to back off its considerations for the Huntington Tri-State Airport.

Cabell commissioners approved sending a letter to the FAA during a regular meeting Thursday, which they said echoed a similar letter sent recently by airport Director Brent Brown.

“One of the reasons is that FedEx flies in and out of our airport,” said Commission President Nancy Cartmill. “They do a lot of flights at night, and that would really hurt the airport financially.”

FedEx holds a contract with the airport to operate FedEx Air and a FedEx ground shipping hub out of the airport’s Aeorplex complex, which is a 100-acre industrial park nearby.

If the FAA mandated eliminating overnight air traffic control, flights would still be able to take off and land at the airport during the night, just without controllers helping them.

“There’s also lots of other reasons — the mountainous terrain and that kind of thing,” Cartmill said. “You just can’t get in and out of there without air traffic controllers.”

It’s unclear when the FAA would begin the proposed study.

The airport currently hosts two major airlines offering nonstop destinations to Charlotte, North Carolina; Orlando, Florida; St. Petersburg/Clearwater, Florida; and Myrtle Beach, South Carolina. More than 101,000 people boarded planes at the airport in 2018, according to FAA data.