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West Virginia Record

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Citing Coronavirus concerns, federal judge pushes back opioid trial to October

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By Chris Dickerson | May 11, 2020

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CHARLESTON – Citing the Coronavirus pandemic, a federal judge has granted a “modest extension” pushing back the start of the trial in cases filed by the City of Huntington and Cabell County against three major opioid distribution companies.

On May 11, U.S. District Judge David Faber issued a Memorandum Opinion and Order in response to the defendants’ motion to extend court deadlines.

Instead of the planned Aug. 31 start date, the trial now will begin Oct. 19. The defendant companies – AmerisourceBergen Drug Corporation, Cardinal Health Inc. and McKesson Corporation – had asked for a three-month delay. Faber opted for about half of that. Huntington and Cabell County had opposed the requested extension.


Majestro

“According to defendants, discovery in this case has been ‘hobbled’ by the COVID-19 pandemic,” Faber wrote. “The court has conferred with Special Master (Christopher) Wilkes regarding the status of discovery in these cases. … It is fair to say that the parties’ ability to complete discovery has been hampered to a degree. Therefore, good cause does exist for a modest extension of the schedule in this case.”

One of the plaintiffs attorneys said he understands the rationale.

"While we did not believe that an extension was necessary, we understand the court's concern over the COVID-19 crisis," Tony Majestro told The West Virginia Record. "We believe that the modest extension is consistent with recognizing the importance of abating the opioid epidemic, an epidemic that has killed and continues to kill more Cabell County residents that COVID has statewide. 

"We look forward to trying our case in October."

The new deadlines are as follows: Written/document discovery must be completed by June 12 (necessary motions to ensure that deadline is met must be filed by May 15); fact witness depositions must be completed by July 27; plaintiffs’ expert reports are due Aug. 3; defendants’ expert reports are due Aug. 13; expert witness depositions must be done by Sept. 15; Daubert motions must be filed by Sept. 22, responses by Sept. 29 and replies by Oct. 5; motions in limine by Sept. 22 and responses by Sept. 29; and motions for summary judgment by Sept 22, responses by Sept. 29 and replies by Oct. 5. There is a hearing scheduled for Oct. 14 to address any remaining pretrial issues.

The plaintiffs will have six weeks to present their case starting Oct. 19. After a break, defendants will begin their case Jan. 4, 2021.

At a March 5 status hearing, Faber had set the trial start date for Aug. 31. Defendants would begin presenting their case Nov. 9. A day before that hearing, 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.

“It means a lot more work for this court on the back end, but this is the type of case that it’s wise for a bench trial,” Faber said during the March 5 hearing.

A local attorney not involved in the opioid case said he thinks a bench trial in this case is good for both sides.

“First, for the plaintiffs, it dampens the prospect of a runaway verdict that will end up being appealed all the way to the U.S. Supreme Court,” Harvey Petyon told The West Virginia Record. “The plaintiffs want it resolved. These cities, counties and governmental agencies need this help.

“(Having Haden rule) will make the trial go more expeditiously. There’ll be a lot of evidentiary rulings that won’t need to be made. And generally, it’s more economical. The risk the defense runs is if you have a good case on damages, but there also will be no punitive damages.”

Peyton, who operates The Peyton Law Firm in Nitro with his son Tom, said a jury here in West Virginia also might have a hard time valuing the intangible aspects of such a case.

“Everybody lives with that here,” Peyton said. “We’ve all seen the pain and suffering this epidemic has brought here.

“People around the country don’t realize that we’re just buried by this damn thing here. I’ve got friends in Chicago and other parts of the country. When you tell them you can walk in Huntington and see people shooting up on the sidewalk or you can see people in Charleston passe out in cars, they don’t believe it.”

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 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.

In February, parties in both state and federal opioid lawsuits met in Charleston to work toward a settlement. Originally ordered for the cases being heard by the state’s Mass Litigation Panel, the talks were the first time discussions took place regarding both the state and federal lawsuits.

According to reports, a $1.25 billion settlement was proposed. That money would go to the plaintiffs in the cases. Attorney fees would be awarded afterward.

One of the judges overseeing the state portion of the cases chastised attorneys for speaking to the media about the proposed settlement and about the negotiations.

"Any written statement or discussion regarding mediation is confidential; shall not be used in the present litigation or in any other litigation (whether presently pending or filed in the future); and shall not be construed as or constitute an admission," Lead Resolution Judge Joanna Tabit wrote in a March 2 order. "Breach of this provision shall subject the violator to sanctions.

"This court admonishes all parties and counsel who participate in mediation conducted by the resolution judges, that the mediation process is confidential. The court orders that, henceforth, there shall be no communication with anyone outside of the mediation process, including the news media, regarding any written statement or discussion concerning mediation, including settlement demands, offers or positions of any party."

U.S. District Court for the Southern District of West Virginia case number 3:17-cv-01362 and 3:17-cv-01665

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