By Cara Salvatore

Law360 (March 5, 2021, 11:55 AM EST ) A major trial against opioid makers by New York's attorney general and local governments will not start at the end of March as planned, a judge ruled Friday, citing ongoing pandemic safety concerns.

In a virtual hearing, Suffolk County Supreme Court Judge Jerry Garguilo, who's overseeing the case, said he will make a fuller ruling Monday, including a new date for either the trial or a pretrial conference. The March date is off, the judge said.

"If we were to start on the 29th, we could not comply with the COVID[-19] restrictions," Judge Garguilo said. "The court is concerned with the health and safety of the personnel here, all of you, and the jurors."

The trial will test claims by New York Attorney General Letitia James and Nassau and Suffolk counties that drugmakers and distributors fueled the opioid crisis.

As a general matter, the plaintiffs want the trial to be as soon as practicable, and the defendants are satisfied with making it later in the year.

Originally set for March 2020, the trial was postponed as the pandemic first surged. Nearly a year later, the setting of the March 2021 trial date immediately nudged litigants out of wait-and-see mode, plaintiffs' attorney Paul Napoli told the judge Friday.

"Setting the trial has not only helped spark discussions in New York but also in California and also nationally," Napoli said, arguing for a delay of as little as 30 days. Noting President Joseph Biden's recent prediction that vaccines will be fully available for all U.S. adults by the end of May, Napoli said defendants will try to find other ways to delay.

"You're going to have other trials that are going to occupy some of these same lawyers, and that will be the next excuse. And if there is not a firm trial date, people will think they can get away with another time and another time and another time," Napoli said.

Drug companies, distributors and pharmacies, including Johnson & Johnson, McKesson Corp. and CVS Health Corp., told Judge Garguilo last week that a former Centers for Disease Control and Prevention official, Dr. Stephen Ostroff, has told them there's no way to proceed in March without jeopardizing safety. They have requested that the trial instead start Aug. 1.

Kirkland & Ellis' Donna Welch, speaking Friday for the defendants, detailed how even a June 1 trial date would impose hardships for the hordes of lawyers and staff that plan to attend the trial.

"Many of the folks we're talking about, myself and my staff included, are, frankly, lower down on the list to get vaccines. We hope that we'll get vaccines in May, but it may not be in May. And people need to travel and quarantine in order to allow the trial to begin," Welch said.

A June 1 trial date would mean flying cadres of people to New York and securing hotel space by mid-May, Welch said.

The dangers of mid-pandemic court proceedings aren't just theoretical. In Los Angeles, three court staffers died last month after testing positive for COVID-19 following the return of in-person hearings and trials in Los Angeles County Superior Court, the New York opioid defendants pointed out to Judge Garguilo last week.

A Texas attorney also recently died of COVID-19 that he likely contracted during a court hearing and trial in the Lone Star state that became a superspreader event in which 15 participants tested positive, ending in a mistrial, the companies said.

Judge Garguilo cited not just safety concerns Friday but a raft of knock-on challenges from the pandemic. He said there have been very recent "additional court cutbacks" of staff, from 60% personnel levels to 40%.

An additional stricture is that current pandemic restrictions limit trial proceedings to two days per week. "Given the complexity of the case, to ask jurors to set aside two days a week for an indefinite period of time may make it impossible to actually seat a panel," Judge Garguilo said.

The trial is expected to last for several months even on a five-day-a-week schedule.

There are also ongoing talks about using a large ceremonial courtroom for the trial, taking out the normal seats and filling it with spaced-out counsel tables for the lawyers, and allowing the public to watch remotely, the judge said.

Although states and local governments have filed thousands of cases blaming drug companies for the opioid crisis, only one has gone to trial, when Oklahoma's attorney general won a $465 million judgment against Johnson & Johnson in a bench trial, which has been appealed.

The state is represented by the Office of the New York State Attorney General. Nassau County is represented by Napoli Shkolnik PLLC. Suffolk County is represented by Simmons Hanly Conroy LLC.

The defendants are represented by Kirkland & Ellis LLP, Reed Smith LLP, Foley & Lardner LLP, Williams & Connolly LLP, Morgan Lewis & Bockius LLP, O'Melveny & Myers LLP and other firms.

The cases are In re: Opioid Litigation, case number 400000/2017; County of Suffolk v. Purdue Pharma LP et al., case number 400001/2017; County of Nassau v. Purdue Pharma LP et al., case number 400008/2017; and State of New York v. Purdue Pharma LP et al., case number 400016/2018, all in the Supreme Court of the State of New York, Suffolk County.

--Additional reporting by Emily Field. Editing by Alyssa Miller.

Update: This story has been updated with more details about the case and with counsel information for the parties.

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