HUNTINGTON – The federal trial for three drug manufacturers accused of fueling the opioid epidemic has been rescheduled again.
The new tentative date is for the trial to begin May 3 in the lawsuits filed by the City of Huntington and the Cabell County Commission against AmerisourceBergen, Cardinal Health and McKesson.
The bench trial has been postponed a few times because of Coronavirus fears, but U.S. District Judge David Faber scheduled the new one during a January 6 remote hearing with all parties. If it goes forward, the end of the trial is projected to be August 9.
“If not for the delays caused by the COVID-19 pandemic, the public would already know the truth about how the opioid distributors created and fueled the opioid epidemic,” the lead attorneys in the National Presciption Opiate Litigation – Paul T. Farrell Jr. of Farrell Law, Paul J. Hanly Jr. of Simmons Hanly Conroy and Joe Rice of Motley Rice – said in a statement. “As Judge Faber indicated, it’s beyond time to move forward with a trial to work toward obtaining the resources that the people of the City of Huntington and Cabell County, West Virginia, and communities nationwide, desperately need as both of these crises rage on.”
The defendants wanted to move forward with no specific date to give officials time to distribute Coronavirus vaccinations. But Faber declined, saying he wants to get “this thing moving” and “get some closure.”
Last month, Faber issued an order delaying the trial “until further order of the court.” The three-page order also suggested the trial could begin remotely.
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.”
In November, 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
