NY AG Opioid Trial Now Set For June Amid Virus Concerns

By Emily Field
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Law360 (March 8, 2021, 10:07 PM EST) -- A New York state judge on Monday set a new June trial date for the long-anticipated New York attorney general's suit over the opioid crisis, which has been delayed multiple times due to the coronavirus pandemic.

Suffolk County Supreme Court Justice Jerry Garguilo in a one-page order said he would set the trial to start on June 8. During a teleconference hearing on Friday, the judge called off the prior March 29 trial date out of concerns for the health and safety of attorneys, court staff and jurors.

The judge also moved a March 22 court appearance to May 3.

"On that date, the court and all counsel will consider all factors, conditions, reports, and the like reflecting on a realistic and responsible date to commence the preliminary voir dire process (distribution and collection of juror questionnaires)," the judge said.

The trial will test claims by New York Attorney General Letitia James and Nassau and Suffolk counties that drugmakers and distributors fueled the opioid crisis.

Originally scheduled to start in March 2020, the trial has been delayed multiple times due to COVID-19.

"Although we are disappointed that the trial will not start in the next two weeks, we see light at the end of this tunnel and expect a trial in June," Hunter Shkolnik of Napoli Shkolnik PLLC, representing Nassau County, told Law360 on Monday.

Justice Garguilo cited not just safety concerns but a raft of knock-on challenges from the pandemic. He said there have been very recent "additional court cutbacks" of staff, from 60% personnel levels to 40%.

An additional stricture is that current pandemic restrictions limit trial proceedings to two days per week.

"Given the complexity of the case, to ask jurors to set aside two days a week for an indefinite period of time may make it impossible to actually seat a panel," Justice Garguilo said.

The trial is expected to last for several months, even on a five-day-a-week schedule.

During the Friday hearing, plaintiffs' attorney Paul Napoli pushed for a shorter delay of as little as 30 days.

"Setting the trial has not only helped spark discussions in New York but also in California and also nationally," Napoli said.

Noting President Joe Biden's recent prediction that vaccines will be fully available for all U.S. adults by the end of May, Napoli said defendants will try to find other ways to delay.

Drug companies, distributors and pharmacies, including Johnson & Johnson, McKesson Corp. and CVS Health Corp., told Justice Garguilo before the hearing that a former Centers for Disease Control and Prevention official, Dr. Stephen Ostroff, has told them there's no way to proceed in March without jeopardizing safety. They requested that the trial instead start Aug. 1.

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.

A bellwether trial in West Virginia against major drug distributors is set to start in May, and another bellwether case against pharmacy chains is scheduled to start in October after COVID-19 delays.

Representatives for the defendants didn't immediately respond to requests for comment on Monday.

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, Zuckerman Spaeder LLP and other firms.

The cases are In re: Opioid Litigation, case number 400000/2017; County of Suffolk v. Purdue Pharma LP et al., case number 400001/2017; County of Nassau v. Purdue Pharma LP et al., case number 400008/2017; and State of New York v. Purdue Pharma LP et al., case number 400016/2018, all in the Supreme Court of the State of New York, Suffolk County.

--Additional reporting by Cara Salvatore. Editing by Michael Watanabe.

Update--This article was updated to include additional counsel information for the defendants. Correction: This article initially had the wrong start date for one of the bellwether trials. The error has been corrected.

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

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