CHARLESTON – A federal judge again has pushed back the start of a key opioid trial, this time indefinitely, because of concerns about spreading the Coronavirus.
On December 3, Senior U.S. District Judge David Faber issued an order delaying the trial “until further order of the court.” The three-page order also suggested the trial could begin remotely.
“Plaintiffs are hereby invited to submit a proposal regarding the extent to which their case-in-chief could be presented remotely without receiving life testimony by remote means,” Faber wrote in his latest order.
Faber
A pretrial conference scheduled for December 8 has been moved to January 6 and February 3, both by video conference.
“COVID-19 is ravaging our country, and so is the opioid crisis,” attorneys for the plaintiffs – the City of Huntington and the Cabell County Commission – said in a statement. “Both require resources and dedication now to help those in need.
“While a traditional trial may not be possible, progress can still be made and the facts behind the roles of the distributors in the opioid epidemic revealed. We will work with the court in every way possible to continue pushing the litigation ahead for the sake of suffering communities nationwide.”
The statement was released by the Plaintiffs’ Executive Committee in the National Prescription Opiate Litigation (NPOL). The executive committee includes co-leads Paul T. Farrell Jr. of Farrell Law in Huntington, Paul J. Hanly Jr. of Simmons Hanly Conroy and Joe Rice of Motley Rice LLC.
The plaintiffs filed the suits alleging the wholesale drug company defendants are responsible for the costs government entities have had to pay because of the opioid epidemic. They say the drug companies have saturated parts of the country with shipments of prescription pain medication. The companies deny responsibility.
In October, Faber had pushed back the start of the trial to January 4. It already had been pushed back to October from August before that because of fears the trial could become a “super-spreader event.”
Last week, defense attorneys requested another delay because of COVID-19 concerns.
“Since Oct. 9, when the court continued the previously set October trial date, the COVID-19 pandemic — the reason for the continuance — has exploded, entering a new and tragic phase in West Virginia and around the country,” the attorneys for McKesson, Amerisource Bergen and Cardinal Health wrote. “But, while court business should not stop altogether because of the pandemic, nor can it continue as usual.
“These are extraordinary times that call for the court and parties to act as responsibly as possible to avoid contributing unnecessarily to the pandemic.”
Attorneys for the plaintiffs agree, saying the COVID pandemic and the opioid crisis have combined to create major challenges.
“It is also undisputed that the opioid crisis continues unabated at the same time,” they wrote. “The seriousness of the ongoing opioid crisis, which as noted above has only been magnified by COVID justifies taking an alternative approach that both acknowledges the public health considerations presented by the pandemic while also getting the trial process underway,
so the plaintiffs have an opportunity to have their cases decided.”
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