By Michelle Casady

Law360 (May 27, 2020, 5:48 PM EDT ) A Spanish company wants the Fifth Circuit to postpone a July trial start date in a $165 million dispute involving Petrobras, arguing a federal judge in Texas has disregarded pandemic-related safety concerns and the wishes of the parties with so soon a trial date.

Vicinay Cadenas SA, a leading manufacturer of chains and other accessories used in offshore operations, filed a petition for writ of mandamus with the Fifth Circuit on Friday challenging U.S. District Judge David Hittner's order calling for a July trial in its products liability dispute with Petrobras America Inc. With the world still in the thick of the COVID-19 pandemic, a summer trial setting means Vicinay will have trouble getting its witnesses to court, it said.

The lawsuit, which began in 2012, stems from an allegedly defective chain manufactured by Vicinay that was in use on one of Petrobras' floating production facilities in the Gulf of Mexico.

Vicinay told the court in its petition that originally the trial was set for June, but in early May both it and Petrobras jointly moved, in light of the pandemic, to push it back to January 2021, "an agreed date that was available on the district court's calendar."

"But the court arbitrarily denied that agreed motion, instead decreeing that the jury trial would begin on July 13, 2020 — when the novel coronavirus will be still actively spreading, international travel will be severely curtailed, and foreign witnesses and Vicinay Cadenas's party representative will almost certainly be legally barred from attending," Vicinay told the court.

The result of Judge Hittner's scheduling the trial for later this summer means that Vicinay's fact and key expert witnesses, who live in Spain, will be forced to testify remotely via videoconference "even though all those people are ready and willing to appear."

Vicinay argues that's a clear violation of Federal Rule of Civil Procedure 43(a), which requires in almost all situation that witness testimony "must be taken in open court." This dispute presents "no pressing issues of time sensitivity or public importance" to support pushing ahead with a trial date that would prevent its witnesses from being present, Vicinay told the court.

"Although the wheels of justice must continue to turn, there are doubtless many more pressing matters involving only local parties," Vicinay argued.

Petrobras' suit stems from an alleged failure of a tether chain Vicinay made to help secure a riser system intended to move crude oil from the ocean floor to a floating production facility in the Gulf of Mexico. Petrobras claimed the chain failed because Vicinay had made a shoddy repair to one of the links and that the failure forced it to stop oil and gas development in the area.

In June, the Fifth Circuit revived Petrobras' claim against Vicinay, finding Judge Hittner departed from controlling Louisiana precedent by nixing the lawsuit on summary judgment in July 2018. The panel held the judge wrongly granted Vicinay a win in based on contractual release provisions barring Petrobras from bringing claims against Vicinay, pointing to a state law that invalidates prospective releases for allegations based on "intentional or gross fault."

Mark Baker of Norton Rose Fulbright, who represents Vicinay, told Law360 on Wednesday he believes most federal courts and Texas state courts will end up choosing not to have in-person jury trials until the last quarter of this year because of health concerns. Currently, state courts have been instructed to wait until Aug. 1. to resume in-person jury trials.

In civil trials where "only money is at stake," he said, "the potential harm far outweighs proceeding with a trial where both sides have agreed to postpone it."

"But in this case, the fact that one side can have live witnesses and the other can't violates fundamental fairness because the witnesses want to attend but are legally barred by the U.S. government from doing so," he said. "And so most importantly, the inability to have a live corporate rep on one side when the other side can is certainly not a level playing field and does not reflect well on our court system."

Counsel for Petrobras did not immediately return a message seeking comment Wednesday.

Vicinay is represented by C. Mark Baker, Jonathan S. Franklin, Kevin Michael O'Gorman, Peter B. Siegal, Carter Dugan, Caroline Domino, Denton Nichols, Lena Serhan, Patrick Aana and David T. Kearns of Norton Rose Fulbright.

Petrobras is represented by Stanley McDermott III, Christopher Donovan, Brett Ingerman, Cara Vasquez and Brett David Solberg of DLA Piper LLP.

The case is In re: Vicinay Cadenas SA, case number 20-20273, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Adam LoBelia.

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