CHARLESTON – Three major drug distributors are asking for a delay in an upcoming federal opioid trial, saying it could be a “super-spreader” in the midst of the COVID-19 pandemic.
McKesson, AmerisourceBergen and Cardinal Health filed a motion for a trial continuance October 5 in federal court in the bellwether case filed against it by the City of Huntington and the Cabell County Commission. The trial is scheduled to begin October 19, so the drug companies also request expedited consideration.
They are asking U.S. District Judge David Faber for a continuance until at least January.
Majestro
“On May 11 when the court set the trial date in this case, Kanawha County’s rate of new COVID-19 cases was just 1.44 per 100,000 people,” the motion states. “Since late June, however, COVID cases here have soared. Within the past week, the county’s new-case rate rose to 29.75 per 100,000 – 20 times higher than when the trial date was set, and more than double the national rate.
“Kanawha County’s infection rate, in fact, is now higher than the rate that existed in New York City on May 11, when the court scheduled this trial date and when New York was still nearly a month away from lifting its total lockdown order.”
The motion cites recent events, such as cases developing on NFL teams and the White House event where President Donald Trump, First Lady Melania Trump and others apparently were infected.
“The parties and the court hoped that the local infection rate would remain low enough to permit a safe trial in October, but by now the reality is clearly otherwise,” the motion states. “The national events of the last few days only serve to underscore the risks of bringing together large groups of people from across the country who might unwittingly infect each other and could serve as a ‘super-spreader’ event in Charleston.
“It is untenable and unduly risky to commence a 12-week trial involving scores of participants in a county where the COVID-19 rate is so persistently high that officials are requesting field hospitals. Defendants are deeply concerned about asking their counsel, their staffs, company witnesses, others who will necessarily be in attendance, and of course the families of everyone involved, to expose themselves to this life-threatening risk just now when the health risks here and across the country are so acute.
“The danger of a worst-case outcome for a trial participant or courthouse employee is simply too high right now to proceed with trial as scheduled.”
The plaintiffs haven't filed a response to the request yet, but one attorney said they'll be opposing the motion.
"Plaintiffs have been safely preparing for this trial through the worst of the COVID-19 crisis," Anthony Majestro, one of the attorneys representing Cabell County, told The West Virginia Record. "The judges and court staff in the Southern District have developed protocols that permit us to safely try this case to the court.
"COVID-19 infections have decreased in both West Virginia and Kanawha County. The opioid epidemic, however, remains unabated in Cabell County and West Virginia. The parties have performed the herculean task of getting this case ready to be tried. It is past time for this trial to happen."
As it is currently scheduled, the case before Faber would include a six-week segment starting October 19 followed by a five-week break for the holidays, concluded with another six-week segment that is schedule to begin January 4.
The defendants argue that the virus presents an unacceptable health risk to all involved in the upcoming trial, citing numerous expert articles and noting West Virginia’s increasing infection rates.
In a supplemental memorandum filed the same day, the defendant companies note that U.S. District Judge Dan Polster indefinitely postponed the Track One-B opioid trial that was scheduled to begin November 9 “due to the ongoing COVID-19 pandemic.”
“Notably, the trial that Judge Polster postponed was to be held in Cuyahoga County, Ohio, where the average daily rate of new COVID cases is approximately one-fourth that in Kanawha County and has not risen above six per 100,000 residents since September 8,” the memorandum states.
In May, the 77-year-old Faber pushed back the start of the trial from August 31 to October 19 citing the pandemic.
In March, the defendant companies agreed to allow Faber to conduct a bench trial rather than having a jury. In that motion, the attorneys for the drug distributors say they still have a right to a jury trial. But, they agree to let Faber rule on the case with stipulations.
“After further consideration, however, defendants now consent to waive their right to a jury trial and accept plaintiffs’ proposal that plaintiffs’ punitive damage claims be dismissed with prejudice and that the remaining claims be tried by the court,” the motion stated. “Defendants’ consent in this regard does not alter the time that will be required for discovery, motions practice and other matters that must be completed before trial.”
The remaining claims are public nuisance and civil conspiracy.
Faber is handling the cases after the U.S. Judicial Panel on Multi-District Litigation agreed with Polster about sending the cases back to West Virginia for trial. Polster is overseeing the national opioid litigation.
“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 a 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.
Then, Cabell County and Huntington filed motions to dismiss all other claims other than common law public nuisance, civil conspiracy and punitive damages against the three remaining defendants. Then, Polster sent the two cases back to West Virginia.
U.S. District Court for the Southern District of West Virginia case number 3:17-cv-01362 and 3:17-cv-01665
