NY AG Opioid Trial Gets March Start After COVID-19 Delays

By Emily Field
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Law360 (February 22, 2021, 4:48 PM EST) -- The jury selection process for the bellwether trial in the New York attorney general's suit over the opioid crisis will begin in March, after delays in the long-anticipated trial due to the coronavirus pandemic, a state judge said Monday.

Justice Jerry Garguilo of the Supreme Court of the State of New York, Suffolk County, said during a teleconference hearing that he intends to have voir dire start on March 29 for the trial in which drugmakers and distributors face allegations they are directly responsible for the cost of the health crisis linked to the drugs they sold. 

The landmark trial, which include suits by two Long Island counties as well as the state, was originally scheduled to start last year on March 20, but was put on hold because of COVID-19 concerns.

At the time, the coronavirus had infected at least 173 people in the Empire State; now almost a year later, the death toll from the pandemic in the U.S. is nearing 500,000.

Jury summonses are already going out, the judge said.

"We're going to have jurors in the building, in other words jurors summoned to jury duty on or about March 22 of this year," Judge Garguilo said. "The court intends to consult with the administrative judge ... as well as with the commission of jurors with an eye, an intent to get the voir dire process started on March 29 of this year."

Previously, the judge had aimed to start jury selection in January.

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 case has gone to trial. That bench trial saw Oklahoma's attorney general win a $465 million judgment against Johnson & Johnson, which has been appealed.

One issue raised during the roughly 30-minute hearing on Monday was McKinsey & Co.'s recent $600 million deal with nearly every state to end allegations that it unlawfully aided deceptive marketing of addictive painkillers.

Before a court hearing last week over James' requested approval of a $32 million settlement for New York state, roughly 20 cities and counties in New York in a filing called for the state's settlement to be rejected or revised.

According to the local governments, the deal is too small, is improperly labeled as inadmissible in other cases and would improperly release McKinsey from liability for claims that local governments may wish to pursue.

Judge Garguilo directed the parties to submit briefings on whether they believed that the proposed consent order forecloses all others from bringing suit against McKinsey or a subsidiary.

"The state's position ... is no," New York counsel David Nachman said. "The entry of the consent judgment, we have stated, does not bar the assertion of whatever valid claims that subdivisions may have."

The courtroom for the trial will be limited to 30 people, but Judge Garguilo said he has been having discussions about moving the trial to a larger venue to accommodate more attorneys and observers.

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 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 Bruce Goldman.

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

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