CHARLESTON, W.Va. — Attorneys for the “Big Three” opioid drug distributors want another 18 months to prepare for a trial in a case filed by the city of Huntington and Cabell County but a federal judge said Monday that’s probably not going to happen.
“You asked for 18 months? I’m not inclined to give you anything close to 18 months,” U.S. District Judge David Faber said during an hour long status hearing.
Faber did order cross briefs to be filed within 10 days on the issue of whether the trial should be a jury trial, like drug distributors AmerisourceBergen, McKesson and Cardinal Health, want or a bench that Huntington-Cabell has stipulated to.
Huntington Mayor Steve Williams said as far as he’s concerned a bench trial or a jury trial would accomplish the same purpose.
“There will be people put on the stand. They’ll have to swear an oath. They’ll have to answer factually what has occurred in our community. Nearly 100 million opioid pills have been distributed in Cabell County over a 10-year period,” Williams said.
The lawsuit, filed in 2017, blames the “Big Three” for fueling the crisis. The case was part of a group of similar cases being considered in federal court in Cleveland but was recently released back to U.S. District Court in West Virginia’s Southern District.
Most of Monday’s hearing was spent arguing about how soon a trial should take place.
Attorney Paul Farrell, lead attorney for the plaintiffs, told Faber he could have discovery completed and be ready for trial within a few weeks.
“We need a trial date. We need closure. We need an end of the road,” Farrell said. “Certain aspects of this case are in the can (ready to go). All I need from them is a list of suspicious orders and due diligence files.”
Plaintiff’s co-counsel Rusty Webb said after the hearing the 18-month request by the drug distributors was insulting.
“Most, if not all, of the general discovery was done in Cleveland,” Webb said. “Most, if not all, of the major motions were ruled upon in Cleveland.”
McKesson attorney Mark Lynch told Faber the Huntington-Cabell case is “much more serious” than the other opioid cases discussed in Cleveland.
“Eighteen months in a good number in getting the case ready for trial,” Lynch said. “He (Farrell) knows we have requests for documents that he can’t provide in 30 days.”
Farrell said the “Big Three” are stalling with a purpose in mind.
“What this really is—it’s a delay in justice,” Farrell said.
AmerisourceBergen attorney Robert Nicholas said that’s not the case.
“We’re trying to protect ourselves so we can defend ourselves,” Nicholas said.
Faber didn’t set a trial date Monday but said he would following another status hearing in March.
“Let’s get moving on discovery,” Faber said. “I intend to set a trial date after that (March) status conference.”
Along with the briefs he ordered on the bench-jury trial issue, Faber also ordered a case management filing within two weeks.
Lynch did shed some light on what the defense would be for the distributors. He said they believe a previous settlement with the state on the opioid issue covers political subdivisions like Cabell County and Huntington. He also questioned the standing the plaintiffs have to file a nuisance case against the distributors.
“The plaintiffs can’t recover nuisance damages before they passed a nuisance ordinance in 2017,” Lynch said.
Lynch added the statute of limitations issue would also be raised in the months leading up to the trial.
Plaintiff’s attorney Anthony Majestro told Faber the question of Joint and Several Liability would also be argued. He said the companies were both jointly and individually responsible for dumping the pills in West Virginia.
Mayor Williams said in the end having a trial is the biggest priority.
“There will be a day that they will be standing in front of the citizens of our community and we will be able to respond,” Williams said.