U.S. District Judge Dan A. Polster notified the parties of a letter sent by Special Master David Cohen that in light of the worsening statistics on the on-going pandemic, the court has become more and more worried that the May date for a jury trial will not be feasible. According to recent reports, the COVID-19 pandemic will likely have its practical end early in the third quarter of 2021, according to the letter, so delaying the trial by a month or two may not be enough.
At the same time, the court wants the trial to be over by Thanksgiving 2021, so the trial date for opening statements has been moved to Oct. 4, 2021, the judge said.
The bellwether case focuses on Trumbull County and Lake County's claims that pharmacy chains like CVS and Rite Aid created a public nuisance by failing to monitor suspicious orders of opioids.
"Although we are disappointed that the trial cannot go forward in May, the counties fully support Judge Polster's decision that safety is the most important factor during the COVID[-19] pandemic," Hunter Shkolnik of Napoli Shkolnik PLLC told Law360 on Monday.
Last week, a West Virginia federal judge delayed a bellwether trial originally set for January, also over coronavirus concerns, although he hinted that parts of the rescheduled trial could be partially remote. In that case, major drug distributors argued that the pandemic made it too dangerous to hold a trial.
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.
Last month in the Ohio case, Judge Polster rejected arguments brought by the pharmacy chains that unidentified Ohio prescribers were liable for opioid prescriptions that Lake and Trumbull counties say should not have been filled by their employees.
The judge had previously rejected a similar third-party complaint against health care workers in the Cuyahoga county case earlier this year on the basis that the claims would make the bellwether trial much more complex.
The pharmacies filed the complaint within the multidistrict litigation on Oct. 5 to include prescribing doctors as defendants. The counties argued it was a delay tactic in the bellwether case, while the pharmacies contended that the counties skipped over the pill mills, unprincipled pain clinics and internet pharmacies that fed the crisis to focus on major chains.
Judge Polster, while overseeing opioid litigation in September, refused to reconsider an earlier decision allowing Lake and Trumbull counties' opioid claims to go forward, reaffirming his conclusion that pharmacies should protect against types of diversion beyond theft.
The judge said that the pharmacies did not offer any new arguments in their claims that Ohio public nuisance laws preclude Lake and Trumbull counties' allegations that they turned a blind eye to red flags they were fueling the opioid epidemic. He said he was firm in his decision rejecting the argument that only their pharmacists, and not themselves as corporations, had a duty under the Controlled Substances Act to guard against the diversion of opioids through illegitimate prescriptions.
Representatives for the pharmacies didn't immediately respond to requests for comment Monday.
The cases are County of Lake, Ohio v. Purdue Pharma LP et al., case number 1:18-op-45032, and County of Trumbull, Ohio v. Purdue Pharma LP et al., case number 1:18-op-45079, in the U.S. District Court for the Northern District of Ohio.
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 Cara Salvatore. Editing by Alyssa Miller.
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