In its response to a continuance motion filed by the U.S. government a day earlier, Perrigo also argued that postponing the trial would be unfair to the company. Perrigo said it "has already committed substantial time and financial resources to trial logistics and witness preparation that would have to be duplicated again in two months."
The company, which is registered in Ireland but has operations centered in Allegan, Michigan, countered arguments from the U.S. Department of Justice's Tax Division on Monday over the safety of a trial amid the coronavirus pandemic. The government had asked the court to push the trial date back to late March or early April.
"While [Perrigo] is not unsympathetic to the COVID-19 concerns raised by [the government], they do not warrant a continuance just two weeks before the scheduled trial," the company argued. In its view, the Grand Rapids court currently has in place safety measures that are "sufficient to enable the parties to conduct an in-person trial this month."
Even the "relatively short" continuance sought by the government would be prejudicial to the company, it said.
In late April, Chief U.S. District Judge Robert Jonker canceled trial dates because of health concerns surrounding the pandemic and said the proceeding couldn't be conducted by video because of the complexities in the case.
Perrigo, which produces generic versions of pharmaceuticals, is seeking to recoup $163.5 million in taxes, penalties and interest associated with its agreement with Israel's Dexcel Pharma Technologies Ltd. to distribute a heartburn medication, omeprazole.
In an August 2017 lawsuit, Perrigo claimed the Internal Revenue Service misattributed profits from sales of over-the-counter medicines in the U.S. and defenses from patent suits during the 2009 through 2012 tax years.
In Tuesday's filing, Perrigo noted that the parties in the case "safely attended" a pretrial conference in December at which the court informed them that it had recently conducted six or seven jury trials without incident.
"It is pure speculation that a two-month postponement would ensure a safer trial environment," Perrigo asserted.
The company cited fluctuating data about infections, emerging variants of the virus, difficulties and unpredictability in the rollout of vaccines, and uncertainty whether vaccinated people can still infect others.
"While DOJ may have a special vaccine allotment, that is not true for [Perrigo's] trial team, support personnel or witnesses," the company said. Most of those individuals are unlikely to have received even one vaccine injection by early April, let alone both shots required for protection, it added.
Perrigo's lead counsel, John Magee, who submitted Tuesday's motion to the court, noted that he had postponed his retirement from Dec. 31, 2020, to Feb. 28, 2021, to accommodate the current trial dates.
"Further extensions make [Magee's] continued participation both problematic and doubtful for a variety of reasons," the filing said.
Perrigo noted that while there are six witnesses who intend to testify remotely at the trial, 19 others are scheduled to appear in person. Fifteen of these are the company's witnesses, but only two are scheduled for remote testimony. In contrast, the government has 10 witnesses, four of whom will be remote, the filing said.
A representative of Perrigo couldn't immediately reached for comment, nor could legal representatives for the U.S. government.
According to previous filings in the case, Perrigo is represented by John Magee, Alex Sadler, Drew Cummings, Thomas Linguanti and Jason Dimopoulos of Morgan Lewis & Bockius LLP and Edward Bardelli of Warner Norcross & Judd LLP.
The U.S. is represented by James Weaver and Arie Rubenstein of the U.S. Department of Justice, Tax Division.
The case is Perrigo Co. v. U.S., case number 1:17-cv-00737, in the U.S. District Court for the Western District of Michigan.
--Additional reporting by Theresa Schliep. Editing by Joyce Laskowski.
For a reprint of this article, please contact reprints@law360.com.