Last month, we reported on the upcoming depositions of top McKesson Corporation executives that have been scheduled as part of West Virginia Attorney General Patrick Morrisey’s lawsuit against the company. In 2016, the West Virginia AG’s office sued McKesson, the country’s largest pharmaceutical distributor, for failing to prevent the flood of opioids to West Virginia pharmacies, particularly to pharmacies in cities and counties where it was abundantly clear that the volume of pills shipped was way out of proportion with what is healthy for these small populations to consume.
The lawsuit was recently remanded from federal court back to Boone County Circuit Court, and depositions are scheduled for five of McKesson’s top executives (including CEO John Hammergren) later next month at the company’s headquarters in San Francisco. Lee Javins and Taylor Norman of Bailey, Javins, and Carter are two of the attorneys scheduled to question Hammergren and the other McKesson executives on behalf of the State of West Virginia.
Last week, McKesson lawyers filed a motion to shield Hammergren,their CEO since 2001, from having to take part in the depositions regarding the shipment of opioid pills to West Virginia. McKesson’s lawyers argued that forcing Hammergren to be deposed would be take up too much of his time and jeopardize McKesson’s operations by hindering the ability of their CEO to effectively perform his duties. Hammergren submitted an affidavit to the Boone County Circuit Court stating that he had “no first-hand knowledge” of McKesson’s opioid distribution in the State of West Virginia, and that he is not in charge of managing the company’s prescription drug order tracking system.
McKesson’s lawyers are invoking the apex doctrine, which asserts that high ranking corporate official can be shielded from being deposed when they have no unique, first-hand knowledge of the facts of the case, and when the plaintiff has failed to exhaust other less-intrusive methods of discovery. In this case, McKesson’s lawyers are saying that Hammergren has no first-hand knowledge of McKesson’s opioid distribution in the State of West Virginia, and that less intrusive means of discovery have not yet been explored by the State of West Virginia. They are making another argument that raises troubling questions, however.
At the heart of the motion filed by McKesson’s lawyers seems to be the precedent this would set. McKesson is facing upwards of 500 lawsuits regarding its opioid shipment practices, and the company is worried about opening the door to similar deposition requests in numerous other cases.
In filing their motion, McKesson lawyers argued, “[i]f Mr. Hammergren were forced to sit even for short depositions in only a fraction of those cases, his job would be transformed from chairman and CEO of a major corporation to professional deposition witness.”
They seem to be saying that because McKesson’s alleged pill-dumping practices are so widespread that they are the subject of hundreds of lawsuits, it is too much of a burden for their CEO to answer questions about it. Think about the precedent it sets to grant McKesson’s motion in this case. How would this not encourage other corporations from engaging in similarly egregious practices on a wide scale – knowing that the CEO could be shielded from answering important questions about such practices by simply invoking the apex doctrine? Also troubling is McKesson’s admission that its own CEO for the past 17 years claims to not have personal knowledge of the distribution of opioids into the State of West Virginia.
Attorney Javins has met privately with McKesson’s lawyers to discuss the upcoming depositions, but thus far, they have been unable to reach a resolution. The State hopes to be able to question all five executives who are scheduled to be deposed, including the CEO. Being able to talk to everyone involved under oath is the only way to ensure that we learn the truth about how so many opioid pills managed to make their way to remote and scarcely populated areas of West Virginia – becoming a major contributor to the current opioid crisis in the Mountain State.