Opioid MDL Bellwether Trial Delayed Amid COVID-19 Fears

By Jeff Overley
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Law360 (October 9, 2020, 4:39 PM EDT) -- Amid coronavirus concerns, a West Virginia federal judge on Friday postponed an eagerly awaited bellwether trial in multidistrict opioid litigation shortly before its scheduled start, adding to a series of recent setbacks for local governments that blame drug companies for rampant addiction.

U.S. District Judge David A. Faber granted a motion in which three drug distributors — McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp. — urged that the trial's start date be moved to Jan. 4 from Oct. 19 because of fears that in-person court proceedings might trigger "a super-spreader event."

Judge Faber didn't immediately describe his rationale for delaying what would have been the MDL's first trial, writing only that a forthcoming opinion would "explain [his] reasons for granting defendants' motion and set forth specific trial protocols that will govern the rescheduled trial."

The trial would be a dramatic test of allegations that some of the nation's largest corporations wantonly sold prescription narcotics and thereby unleashed a devastating addiction plague in West Virginia's Cabell County and its largest city, Huntington, where opioid overdoses have occurred at some of the nation's highest rates in recent years.

"We are very disappointed but understand the concerns. We will wait to we see the court's memoranda to further comment," Motley Rice LLC co-founder Joe Rice, a lead plaintiffs attorney in the MDL, told Law360 on Friday. "This case will go to trial as soon as the court will allow, and we will be ready."

Cabell County and Huntington opposed the delay, telling Judge Faber on Thursday that the trial could safely start this month and that coronavirus conditions in the winter may well be worse than they are now, prompting further postponement.

"When January comes, defendants will ask for another continuance — and will keep doing so again and again for as long as the court will allow in order to avoid going to trial," the county and city wrote.

The local governments also cited statistics on COVID-19 fatalities in West Virginia to argue that the opioid epidemic has been just as dire as the coronavirus pandemic, drawing a rebuke from the drug distributors in a reply brief filed earlier Friday.

"Plaintiffs' demand that trial proceed because there have been only 364 deaths in West Virginia during six months of widespread pandemic is as cynical as it is macabre," the drug companies wrote.

Friday's delay is one of several recent developments that will likely make it harder for the plaintiffs to pressure pharmaceutical companies into settling the MDL's roughly 3,000 cases. On Monday, an Ohio federal judge cited the pandemic when he indefinitely delayed a planned bellwether trial against pharmacies that was set to begin in November.

And in late September, the Sixth Circuit rejected plans for a "negotiation class" that could unite almost every city and county in the U.S. to strike global settlements with drug companies. Distributors and pharmacies bitterly fought the negotiation class concept, and local governments are asking the full Sixth Circuit to rehear the matter.

Representatives of McKesson, Cardinal Health and AmerisourceBergen had no immediate comment on Friday.

The cases are City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, in the U.S. District Court for the Southern District of West Virginia.

The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.

--Editing by Haylee Pearl.

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

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Case Information

Case Title

City of Huntington, West Virginia et al v. AmerisourceBergen Drug Corporation et al


Case Number

3:17-cv-01362

Court

West Virginia Southern

Nature of Suit

Other Statutory Actions

Judge

David A. Faber

Date Filed

January 24, 2020


Case Title

Cabell County Commission v. AmerisourceBergen Drug Corporation et al


Case Number

3:17-cv-01665

Court

West Virginia Southern

Nature of Suit

Other Statutory Actions

Judge

David A. Faber

Date Filed

January 24, 2020


Case Title

In Re: National Prescription Opiate Litigation


Case Number

1:17-md-02804

Court

Ohio Northern

Nature of Suit

P.I.: Other

Judge

Dan Aaron Polster (MDL 28

Date Filed

February 21, 2020

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