CHARLESTON – The legal teams representing Huntington and Cabell County have a vastly different idea of how quickly they want their cases against the nation’s three largest opioid distribution companies to proceed.
During a Jan. 27 hearing before U.S. District Judge David Faber, attorneys for the drug companies asked for 18 months to prepare for trial.
“You asked for 18 months?” Faber said during the hearing, according to MetroNews. “I’m not inclined to give you anything close to 18 months.”
Faber did ask both sides to submit briefs in 10 days about whether there is a right to a jury trial in this case. The drug companies – AmerisourceBergen, Cardinal Health and McKesson – want a jury trial. The plaintiffs want a bench trial, meaning Faber would rule on the evidence.
“These are nothing but equitable claims, so there is no right to a jury trial,” Anthony Majestro, a Charleston attorney representing Cabell County, told The West Virginia Record. “Also, with a bench trial, you can conduct the trial in chunks. You don’t have to do all of it in seven straight weeks or whatever it will take.”
Paul Farrell, the lead attorney for the plaintiffs, told Faber they could be ready for trial in a few weeks. He also said the defendant companies are stalling.
“What this really is … it’s a delay in justice,” Farrell said, according to MetroNews.
Faber said he plans to set a trial date after another status hearing scheduled for March 1.
Faber is handling the cases after the U.S. Judicial Panel on Multi-District Litigation agreed with Cleveland-based U.S. District Judge Dan Polster about sending the cases back to West Virginia for trial. Polster, who is overseeing the national opioid litigation, submitted his request on Jan. 6.
“The court continues to believe that strategic remand of certain cases is the best way to advance resolution of various aspects of the Opiate MDL,” Polster wrote in his Jan. 6 request, adding that he “will remain as the ‘hub’ of the MDL litigation and also the locus for global settlement, while the selected transferor courts will act as ‘spokes,’ supporting this global effort.
“The hub-and-spoke model suggested above is designed to accelerate and facilitate resolution of the Opiate MDL in whole or in substantial part. The MDL court is proceeding with its self-designated tasks with this model in mind. If the JPML concludes the court’s strategy is inappropriate or the particular suggestions of remand are not well-taken, the court will need to modify this model.”
In December, Polster granted a motion by the plaintiffs in these cases to split their claims against AmerisourceBergen, Cardinal Health and McKesson from the others.
The next step was Cabell County and Huntington to file motions to dismiss all other claims other than common law public nuisance, civil conspiracy and punitive damages against the three remaining defendants. That happened, and Polster granted those motions.
Then, the following step was for Polster to ask to send the cases back to West Virginia. That’s what he did in his Jan. 6 request.
In November, Polster started the process to release some of the Multi District Litigation cases originally transferred to him in the Northern District of Ohio to be heard in their respective districts. He indicated the Cabell-Huntington cases are headed that way.
On Nov. 19, Polster suggested remands of three cases – San Francisco vs. Purdue Pharma et al., Chicago vs. Purdue Pharma et al., and Cherokee Nation vs. McKesson et al. In that filing, Polster also said he “will probably submit additional suggestions of remand at the appropriate time.”
That list included City of Huntington and Cabell County, which the court designated as “Track Two” cases almost a year ago. Those cases would focus on the distributor defendants and pharmacy defendants.
“The undersigned will preside over discovery for a short time and then suggest remand,” Polster wrote.
Charleston attorney Rusty Webb, who is one of the lawyers representing Huntington in its case, said Polster is dividing up these bellwether cases strategically so they can be tried relatively at the same time focusing on different defendants and different causes of action.
“What the judge appears to be doing now is strategically remanding cases, but also limiting the defendants that he recommends each of those plaintiffs will go to trial against, “Webb told The Record. “He wants each track to sue a defendant to determine liability instead of everybody suing everybody for everything. That could mean a better chance for a universal settlement after these first cases are heard. …
“It seems like he wants to release the Cabell and Huntington cases like he did the ones for San Francisco, Chicago and Cherokee Nation.”