NY Opioid Trial Defendants Want New COVID-19 Delay

By Emily Field
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Law360 (March 3, 2021, 9:21 PM EST) -- Drug companies, distributors and pharmacies on Wednesday asked the New York state judge overseeing the state's suit over the opioid crisis to again delay the trial, slated to start at the end of this month, over coronavirus concerns.

The companies, including Johnson & Johnson, McKesson Corp. and CVS Health Corp., said they had consulted a former Centers for Disease Control and Prevention official, Dr. Stephen Ostroff, who said there's no way to fairly proceed with the trial starting on March 29 without jeopardizing the safety of counsel and jurors. They requested that the trial instead start on Aug. 1, when vaccinations will be widely available.

"As of today, more than 500,000 Americans have died in this pandemic," the companies said. "While we all hope the worst is behind us, New York's seven-day average of 7,476 cases remains significantly above the seven-day average of 24 cases when this trial was postponed on March 10, 2020, and well above the level of cases experienced throughout most of 2020."

The trial will test claims by New York Attorney General Letitia James and Nassau and Suffolk counties that drugmakers and distributors are directly responsible for the opioid crisis. Although states and local governments have filed thousands of cases blaming drug companies for the opioid crisis, only one has gone to trial, when Oklahoma's attorney general won a $465 million judgment against Johnson & Johnson in a bench trial, which has been appealed.

The trial was originally scheduled to start in March of 2020, but was delayed due to the pandemic. Justice Jerry Garguilo of the Supreme Court of the State of New York, Suffolk County, said last month that the trial will start on March 29.

Under the operating protocols for Suffolk County courts, a judge may hold in-person proceedings two days a week, the companies said.

But the trial would last for several months even without a pandemic, and holding trial proceedings only two days a week would prolong the trial and require attorneys, jurors and court staff to spend more time in a "trial bubble," increasing the risk of infections, the companies said.

Most trial participants won't be vaccinated by the start of the trial on March 29, and in New York, vaccinations are only available to those over age 65, those who work in specific areas or who have certain medical conditions, the companies said.

And while safety measures like daily testing can mitigate risks, those still won't make the trial safe, they said.

"A single positive test by a juror or other trial participant would shut down the entire trial to allow for recovery and quarantining," the companies said. "A single false-positive test would shut down the entire trial for at least several days. And a single false-negative test could be catastrophic."

The companies also pointed out that three court staffers died last month after testing positive for COVID-19 following the return of in-person hearings and trials in Los Angeles County Superior Court.

A Texas attorney also recently died of COVID-19 that he likely contracted during a court hearing and trial in the Lone Star state that became a superspreader event in which 15 participants tested positive, ending in a mistrial, the companies said.

"Here, if trial commences on March 29, participating lawyers, trial support staff, jurors, court personnel, witnesses, client representatives, and anyone else with whom they subsequently interact would face similar risks," the companies said.

Given the likelihood that someone will test positive, the trial will almost certainly go forward in fits, and each time someone develops COVID-19 symptoms, the trial would have to be recessed and participants would have to quarantine, the companies said.

Trials in the federal multidistrict litigation over the opioid crisis and in Washington state's suit against distributors have also been pushed back until the fall from the May start dates, the companies said.

Hunter Shkolnik of Napoli Shkolnik PLLC, an attorney for the plaintiffs, told Law360 on Wednesday that the judge had adopted a jury questionnaire submitted months previously.

"Given the jury questionnaire order just issued it appears the court has set the stage to start the trial as planned," Shkolnik said.

Representatives for the companies didn't immediately respond to requests for comment on Wednesday.

The state is represented by the Office of the New York State Attorney General.

Nassau County is represented by Napoli Shkolnik PLLC.

Suffolk County is represented by Simmons Hanly Conroy LLC.

The defendants are represented by Kirkland & Ellis LLP, Reed Smith LLP, Foley & Lardner LLP, Williams & Connolly LLP, Morgan Lewis & Bockius LLP, O'Melveny & Myers LLP and other firms.

The cases are In re: Opioid Litigation, case number 400000/2017, County of Suffolk v. Purdue Pharma LP et al., Index No. 400001/2017; County of Nassau v. Purdue Pharma LP et al., Index No. 400008/2017; and the State of New York v. Purdue Pharma LP et al., Index No. 400016/2018, in the Supreme Court of the State of New York, Suffolk County.

--Editing by Ellen Johnson.

Update: This article was updated to include additional counsel information for the defendants.

For a reprint of this article, please contact reprints@law360.com.

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