6:00: Morning News

Major opioid trial is paused again because of pandemic, but with possibility of starting remotely

A federal judge has again put a major opioid trial on hold because of the raging spread of coronavirus but wants guidance on how limited aspects of the proceedings could start remotely — “without receiving live testimony by remote means.”

Today made the second time U.S. District Judge David Faber has agreed to push the trial back, although today’s order leaves the trial date “until further order of the court.”

Lawyers for the plaintiffs, Cabell County and the City of Huntington, expressed support of the judge’s willingness to consider alternate means to get the trial going.

“COVID-19 is ravaging our country, and so is the opioid crisis. Both require resources and dedication now to help those in need. While a traditional trial may not be possible, progress can still be made and the facts behind the roles of the distributors in the opioid epidemic revealed. We will work with the court in every way possible to continue pushing the litigation ahead for the sake of suffering communities nationwide,” the lawyers stated.

The trial to determine how wholesalers McKesson, Cardinal Health and AmerisourceBergen should be accountable for the costs of opioid addiction in West Virginia communities originally was scheduled to start Oct. 19. The companies deny wrongdoing.

In October, Faber issued an order pushing the trial date to Jan. 4, 2021.

Then on Nov. 30, lawyers for the drug wholesalers requested another delay because there’s no sign the spread of covid-19 would ease by then.

“Since Oct. 9, when the Court continued the previously set October trial date, the covid-19 pandemic — the reason for the continuance — has exploded, entering a new and tragic phase in West Virginia and around the country,” wrote the lawyers for the drug companies.

The companies made clear they are not asking for the case to stop altogether because of covid.

“But, while court business should not stop altogether because of the pandemic, nor can it continue as usual,” they wrote. “These are extraordinary times that call for the court and parties to act as responsibly as possible to avoid contributing unnecessarily to the pandemic.”

Citing the near availability of vaccines to hold the virus at bay, the companies proposed an April 19 trial date.

Faber took a wait-and-see approach but set pretrial conference dates for Jan. 6 and Feb. 3.

The plaintiffs include the Cabell County Commission and City of Huntington, which contend the companies compounded the drug crisis by saturating the region with shipments of prescription painkillers.

The case was part of a group of similar cases being considered in federal court in Cleveland but was released back to U.S. District Court in West Virginia’s Southern District late last year.

On behalf of the communities, the Plaintiffs’ Executive Committee in the National Prescription Opiate Litigation said citizens are dealing with not one but two health crises — the covid pandemic and the opioid epidemic.

Lawyers for Huntington and Cabell County agreed that the rapid rise of covid cases is alarming and could still intensify.

“But it is also undisputed that the opioid crisis continues unabated at the same time,” wrote lawyers for the plaintiffs, contending the opioid crisis and the covid pandemic are intersecting with each other to create unprecedented challenges.

To maintain trial progress, lawyers for the communities proposed embracing streaming technology such as videoconferencing. The lawyers proposed conducting pretrial conferences and even opening trial statements this way. Opening weeks of the trial could also include submission of deposition testimony and other non-testimonial evidence.

Because it’s a bench trial, rather than involving a jury, the plaintiffs suggested the trial could be conducted in phases and adjust to circumstance.

“The seriousness of the ongoing opioid crisis, which as noted above has only been magnified by covid justifies taking an alternative approach that both acknowledges the public health considerations presented by the pandemic while also getting the trial process underway,
so the Plaintiffs have an opportunity to have their cases decided,” wrote lawyers for the communities.





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