By Frank G. Runyeon

Law360, New York (March 10, 2021, 10:29 PM EST ) AMC surprised the creator of "The Walking Dead" in New York state court Wednesday with a doomsaying motion to delay their in-person jury trial by a year, warning of the potentially deadly toll the COVID-19 virus could exact on their families if they tried the case in April.

In a contentious remote conference, counsel for AMC Networks Inc. sparred with attorneys for producer Frank Darabont, who accuses the company of shorting him more than $280 million in profits. AMC counsel employed dramatic imagery of vaccinated "silent carriers," superspreader jurors "like a rapid fire machine gun" in the courtroom and elderly "scared witnesses" being forced to fly in from California amid a state-mandated two-week quarantine.

"We think the right thing to do on this drop-dead date is to declare that the trial will not proceed," said AMC counsel Orin Snyder, pointing to federal health guidelines and medical news reports. "There will be mass transmission of COVID" in New York City at the current trial start date, he argued.

"There will be new variants, there will be deaths. Going to court on April 26 will be Russian roulette," Snyder said. "All you need is one superspreader and our entire trial has Covid."

The trial should be pushed back to the next available date, April 2022, he argued.

"This is about life and death of witnesses and families," Snyder said. "This is a civil case about money. Nobody's life or liberty is at stake."

AMC's motion to delay the trial featured both evidence of a medical necessity to delay and a constitutional argument that any jury seated at the time of the trial would be "skewed."

Appearing in his vacant courtroom by video link, New York State Supreme Court Justice Joel M. Cohen appeared sensitive to AMC's arguments but noted that New York has already announced that civil trials will be gradually restarting March 22 throughout the state and that he had not yet made a final decision on whether this trial would proceed.

"I take very seriously what you've said," an unmasked Justice Cohen said while sitting beside his masked clerk. "The court system is taking lots of precautions," he added.

Jerry D. Bernstein, counsel for Darabont, slammed Snyder's motion to delay trial saying their side was being "sandbagged" with no warning that such a motion was coming weeks before voir dire. The attorneys repeatedly spoke over each other, leaving the judge to play referee.

"Judge, I've really been patient. I know that Mr. Snyder thinks he's an epidemiologist. We're not scientists!" Bernstein said, amid crosstalk.

"Don't talk over other people or me," Justice Cohen said as the lawyers kept talking over him.

"Mr. Bernstein, you're smiling and laughing. People are dying!" Snyder said, scolding his opponent.

"Stop it. Really, this is ridiculous," Bernstein shot back.

"Guys, guys, guys," Justice Cohen interjected, saying he didn't think anyone "was taking lightly" the issues involved with balancing health risks and pushing the trial back by a year. "I don't think its fair to say that anyone of a potentially different view doesn't care about the serious issues you're describing," the judge said.

Darabont's legal battle against AMC began after he developed "The Walking Dead" in its initial years and served as its executive producer from 2010 to 2011. In 2013, Darabont, Ferenc Inc., Darkwoods Productions Inc. and his talent agency, Creative Artists Agency LLC, accused the network and its affiliates of using shady accounting practices to drive down Darabont's cut of revenues from the popular zombie apocalypse television show.

Darabont claims AMC Studios licensed the series for broadcast to its corporate affiliate, AMC Network, using an artificially low license fee that drove down his share in breach of their contracts and cheated him out of more than $280 million. Contract claims in two consolidated suits are currently set to head to a jury trial in April before Justice Cohen.

At the beginning of the hearing and before Snyder launched into his bid to delay trial, the judge and Bernstein had appeared to agree on adding extra alternate jurors to the courtroom — upping the total to four instead of two or three — with the judge describing how they would be spaced throughout the room.

"I don't think we could get more than four, but I would certainly consider up to four," Justice Cohen said.

At the close of the hearing, the judge instructed the attorneys to continue preparing for trial while he considered AMC's motion to delay.

Darabont and the other plaintiffs are represented by Jerry D. Bernstein and Nicholas R. Tambone of Blank Rome LLP and Dale F. Kinsella, Chad R. Fitzgerald and Aaron C. Liskin of Kinsella Weitzman Iser Kump LLP.

AMC and the other defendants are represented by Orin Snyder, Brian C. Ascher, Lee R. Crain, Scott A. Edelman and Ilissa Samplin of Gibson Dunn & Crutcher LLP.

The case is Frank Darabont et al. v. AMC Network Entertainment LLC et al., case number 650251/2018, in the Supreme Court of the State of New York, County of New York.

--Additional reporting by Dorothy Atkins. Editing by Andrew Cohen.

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