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Law360 (August 10, 2020, 5:03 PM EDT ) Opioid companies on Monday told a New York state judge that the trial and upcoming hearings over the state's claims that they fueled the opioid crisis shouldn't be livestreamed, saying 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 that COVID-19 doesn't create a new constitutional right to publicly broadcast court proceedings. The so-called Frye hearings in the suit, which are used to determine the admissibility of scientific evidence, are scheduled to start on Aug. 14.
According to the New York attorney general, 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 New York Supreme Court Justice Jerry 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.
A spokesman for New York Attorney General Letitia James declined to comment beyond a letter sent by her office on Friday requesting that the hearings be broadcast.
The attorney general argued that the 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.
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," James' office said.
Representatives for the defendants didn't immediately respond to requests for comment Monday.
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 Alyssa Miller.
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