Opioid Hearings In NY AG's Suit Will Be Made Public

By Emily Field
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Law360 (August 12, 2020, 4:33 PM EDT) -- A New York state judge said he would allow "meaningful public access" to upcoming hearings in the state attorney general's suit alleging that opioid companies fueled the addiction epidemic, after opioid companies protested against livestreaming.

New York Supreme Court Justice Jerry Garguilo said that the exceptions against making court proceedings public — which include cases involving divorce, abortion and rape — clearly do not apply here, according to a short order filed on Monday.

The judge said that during the suit's so-called Frye hearings, which are used to determine the admissibility of scientific evidence, a remote audio and video feed will be set up in another courtroom to accommodate citizens, the press and parties' counsel.

The judge also said that he was looking into the availability of streaming video and audio online, for which a link and password would be provided. The hearings are scheduled to start on Friday.

The opioid companies sent a letter to the judge on Monday, saying that since courts transitioned to virtual proceedings because of the coronavirus pandemic, not one court has used livestreaming to ensure public or press access.

The companies, which include opioid makers and distributors Johnson & Johnson and McKesson Corp., said the COVID-19 pandemic doesn't create a new constitutional right to publicly broadcast court proceedings.

According to New York Attorney General Letitia James, there's an intense public interest in the case, and livestreaming over YouTube could mean 665,000 people could be watching at any one time, the companies said in a letter to Justice Garguilo.

Publicly broadcasting the hearings would also put pressure on witnesses due to the intimidation of the cameras, the companies said.

"And as defendants have previously detailed, these impacts are particularly acute here, where plaintiffs' trial witness lists contain scores of defendants' rank-and-file employees," the companies said.

The highly anticipated trial was set to start on March 20, but was put on hold due to the pandemic. A new trial date has not been scheduled yet.

The trial is expected to test allegations from New York and two Long Island counties against major drug manufacturers and distributors.

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 trial saw Oklahoma's attorney general win a $465 million judgment against Johnson & Johnson, which is appealing.

New York's attorney general has argued that the current suit is exactly the kind of case that should be broadcast, as it's a government suit over a major public health issue.

"Further, there is no reason to believe that audio-visual coverage of the proceedings will affect the good order of the court, as the anticipated livestreaming will be entirely passive in nature, meaning that viewers or listeners will not be able to interrupt the proceedings in any way," the attorney general said in an Aug. 7 letter.

A livestream broadcast would also not burden the court's resources or compromise safety, the attorney general said.

"In fact, the opposite is true: Livestreaming will allow those who would have otherwise traveled to the courthouse to safely view the proceedings remotely, thereby reducing indoor interactions for court personnel during COVID-19," the attorney general's office said.

Representatives for the parties did not immediately respond to requests for comment.

The case is In re: Opioid Litigation, case number 400000/2017, in the Supreme Court of New York, Suffolk County.

--Additional reporting by Jeff Overley. Editing by Nicole Bleier.

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

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