The case by West Virginia's Cabell County and its county seat, Huntington, is expected to be a dramatic test of allegations that some of the nation's largest corporations wantonly distributed prescription narcotics and unleashed a devastating plague of addiction.
Despite spiking coronavirus infection levels, the governments said the bench trial does not have to be delayed.
"Although it may not be possible to commence an in-person trial on January 4, 2021 as currently contemplated, plaintiffs nevertheless believe it is possible to begin trial proceedings at that time. The court could hear opening statements from the parties using videoconferencing technology," the governments told U.S. District Judge David Faber.
They said the trial's first weeks could be a mostly asynchronous affair involving the sending of depositions and documents to the judge, who would review them at his convenience.
"The court could also receive testimony from witnesses via videoconference ... the COVID pandemic justifies a finding of 'good cause in compelling circumstances,'" the governments said.
The three distributors, AmerisourceBergen Drug Corp., Cardinal Health Inc. and McKesson Corp., had argued against holding the trial in person as the pandemic's grip has tightened in recent weeks, including in West Virginia.
"There simply is no compelling reason to risk lives by conducting a large, complex, lengthy civil trial this winter," the companies told the court Monday.
Another opioid bellwether, set to take place in Ohio against major pharmacy chains, has been pushed to May, the distributors said. That one will be held before the Ohio federal judge overseeing the national opioid MDL.
Judge Faber in early October had pushed the trial in the distributor case from Oct. 19 to Jan. 4 because of distributors' stated fears that in-person court proceedings might trigger "a super-spreader event."
The governments have also recently fighting to introduce data about opioid use and overdose death rates after the distributors argued an expert witness shouldn't have categorized heroin and fentanyl deaths as opioid overdoses.
The parties have also argued over admission of testimony from people affected by the opioid crisis and admission of the fact of a guilty plea by McKesson's former director of regulatory affairs.
Two lawyers for the plaintiffs, Paul Farrell Jr. of Farrell Law and Anne McGinness Kearse of Motley Rice LLP, said in a joint statement Wednesday, "Respecting the fact that we are in a pandemic, we look forward to Judge Faber's decision and hope that we can move forward with trial proceedings beginning on January 4th by presenting evidence and witnesses with videoconferencing technology."
Representatives for the defendants were not immediately available for comment.
Cabell County is represented by Paul Farrell Jr. of Farrell Law, Anthony Majestro of Powell & Majestro PLLC and Michael Woelfel of Woelfel & Woelfel LLP. Huntington is represented by Anne McGinness Kearse, Joseph Rice, Linda Singer and David Ackerman of Motley Rice LLC and Charles Webb of Webb Law Centre PLLC.
McKesson is represented by Timothy Hester, Laura Wu, Christian Pistilli, Andrew Stanner and Paul Schmidt of Covington & Burling LLP and Jeffrey Wakefield and Jason Holliday of Flaherty Sensabaugh Bonasso PLLC. AmerisourceBergen is represented by Gretchen Callas of Jackson Kelly PLLC and Robert Nicholas and Shannon McClure of Reed Smith LLP. Cardinal Health is represented by Enu Mainigi, F. Lane Heard III, Ashley Hardin and Jennifer Wicht of Williams & Connolly LLP and Michael Carey, Steven Ruby, Raymond Franks II and David Pogue of Carey Douglas Kessler & Ruby PLLC.
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.
--Additional reporting by Rachel Scharf, Al Barbarino and Jeff Overley. Editing by Brian Baresch.
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