In a response brief, the West Virginia governments lambasted an eleventh-hour bid by the nation's largest drug distributors to postpone a bench trial set to start Oct. 19, calling it a frantic move to avoid defending their reckless sales of prescription narcotics and buy time in hopes of "some intervening event that will improve the legal landscape of opioid litigation."
"Defendants are rightly worried about this public spotlight, and therefore have tried desperately to derail the trial for reasons having nothing to do with public health concerns," Cabell County and its largest city, Huntington, said in Thursday's filing.
Cabell County and Huntington observed that the distributors last year launched a last-minute effort to delay what was expected to be the MDL's first bellwether trial; the companies ultimately reached a settlement on the morning of trial after that effort failed.
Distributors McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp. on Monday requested that the trial's start date be pushed to Jan. 4. They cited rising coronavirus cases in the Charleston area, where the three-month trial will play out, and fears that the trial will devolve into "a super-spreader event."
But the local governments on Thursday said that cases in Kanawha County, where Charleston is located, have actually declined considerably of late and that the distributors relied on outdated numbers to claim otherwise.
"No one disputes the profound impact of the coronavirus. But its risks should not be exaggerated nor manipulated for self-serving purposes," Cabell County and Huntington wrote.
The governments asserted that infection risks are manageable, saying that seven trials have occurred in the Southern District of West Virginia amid COVID-19 safety restrictions. And they rejected the distributors' contention that the trial will force attorneys to choose between protecting their health and serving their clients, saying that "both sides have deep benches" of lawyers and that anyone who's uncomfortable can opt out.
Within hours of the distributors' delay request on Monday, an Ohio federal judge indefinitely postponed another bellwether trial in the MDL because of COVID-19 concerns. That trial was set to test allegations against pharmacies that also have distribution channels and are also accused of shipping huge opioid orders that obviously weren't for legitimate medical needs.
Huntington has been called "the overdose capital of America" because of its severe struggle with abuse of hydrocodone, oxycodone and other narcotics. Thursday's brief said that the most recent statewide figures showed 833 and 702 opioid-related deaths in 2017 and 2018, respectively, compared to 364 deaths involving COVID-19 this year.
"The sad reality is that the opioid epidemic continues to kill West Virginians at a faster rate than COVID-19," the brief said. It added that while there's been progress toward treatment and prevention of COVID-19, "people will continue to die [from opioid abuse] until defendants are held responsible for abating the nuisance they created."
As with other local governments in the MDL's roughly 3,000 cases, Cabell County and Huntington want money to reduce opioid addiction and deal with its ongoing strain on the health care and criminal justice systems. Settling the MDL cases, as well as cases filed by state attorneys general, will likely cost the distributors billions of dollars, and a loss at trial could make settlement even more expensive.
Thursday's brief noted that the distributors urged a trial delay because of concerns that COVID-19 conditions will worsen as the weather cools and the flu season commences. But the local governments called that a self-defeating position since it clearly implies that a trial in January would be even more challenging.
"The defendants' arguments tend to confirm the wisdom of adhering to the October start date," the brief stated.
On its current schedule, the West Virginia trial would have a pair of six-week segments divided by a five-week break for the holiday season.
Representatives of the distributors had no immediate comment on Thursday night.
The cases are City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, in the U.S. District Court for the Southern District of West Virginia.
The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.