In a three-page order, U.S. District Judge Daniel D. Crabtree said he "reluctantly" agrees with Pfizer and Mylan Inc. that the trial, which was set to begin April 13 and expected last up to seven weeks, must be pushed back in light of the pandemic.
"Given the scope and intensity of the COVID-19 pandemic in northeast Kansas, a trial with this many participants that is expected to consume the better part of two months in the spring of 2021 simply is not feasible. Nor is it prudent," the order says.
The trial continuance is the latest chapter in a sprawling legal battle over prices for the emergency allergy medication that landed on Judge Crabtree's docket in August 2017 following public backlash that erupted after the price of an EpiPen two-pack soared from $100 in 2007 to $600 in 2016.
EpiPen buyers generally allege that Mylan, which sells the EpiPen, and Pfizer, which makes it, conspired to maintain the emergency treatment's monopoly through large rebates issued to insurers and Medicaid plans that refused to cover a competing medication. The drugmakers also used reverse-payment patent settlements and sham litigation to thwart the emergence of generic competitors, according to the consumers.
After years of litigation, in February the judge certified two nationwide classes of consumers seeking damages for racketeering and state antitrust violations from Mylan and Pfizer. Judge Crabtree set a trial date three times, with the most recent slated for April.
But earlier this month, the drugmakers urged the judge to suspend the trial, pointing to Kansas' rising COVID-19 infections rates, hospitalizations and deaths, and noting the trial will likely involve more than 50 people traveling from around the country to sit in a courtroom for eight hours a day for nearly two months.
The companies also noted that holding the trial would pose health risks for jurors, counsel and the court, and also pose logistical challenges. There's also the risk that holding trial will spark an outbreak, the companies said, citing the mistrial that occurred in November in the Eastern District of Texas after 15 trial participants tested positive for the coronavirus.
"The extraordinary health, logistical and due process challenges posed by the pandemic make clear that a trial of this magnitude and importance cannot be conducted in April 2021," the companies argued.
But the consumers disagreed, arguing in an opposition brief that after four years of pretrial litigation, the drugmakers are trying to delay the trial indefinitely. They called on the court and drugmakers to find solutions to logistical challenges of holding a trial during the pandemic.
"There is no doubt that this nation is facing a grave public health challenge, but we have all been forced to find new ways to keep our lives, our law firms and our clients' causes moving forward," the consumers said. "Our civil justice system cannot and has not ground to a halt."
However, on Wednesday, Judge Crabtree sided with the drugmakers and noted that even if they were to hold the trial in the courthouse's largest courtroom, given the number of people who will be in attendance, it is unlikely the trial could comply with the current COVID-19 social distancing rules and gathering restrictions.
"The court remains hopeful that conditions will improve and that those restrictions may change by April 2021," the order said.
Judge Crabtree added that Chief U.S. District Judge Julie A. Robinson also recently issued an order continuing all in-person civil and criminal jury trials and all in-person hearings or bench trials in the district through Feb. 15.
"These challenges — particularly in criminal matters — likely will affect the court's ability to devote five to seven consecutive weeks to a civil trial in April 2021, even assuming that the court can resume in-person hearings safely by then," the order says.
The judge scrapped the trial date along with pretrial deadlines and ordered the parties to meet about rescheduling the trial for the summer or fall. He also ordered them to file a joint status report on a potential trial date by Jan. 15.
The consumers' counsel, Warren Burns of Burns Charest LLP, said Thursday they understand the court's concerns.
"This is a critical time for Kansas and our nation," he said. "We will work with the defendants to get this important case back on track."
Counsel for Mylan declined to comment. Counsel for Pfizer didn't immediately respond Thursday to requests for comment.
The consumer class is represented by Warren T. Burns of Burns Charest LLP, Rex A. Sharp and Ryan C. Hudson of Sharp Law LLP, Paul J. Geller of Robbins Geller Rudman & Dowd LLP, Lynn L. Sarko of Keller Rohrback LLP, and Elizabeth C. Pritzker of Pritzker Levine LLP.
Mylan is represented by Adam K. Levin, David M. Foster, Carolyn A. DeLone, Kathryn M. Ali, Charles A. Loughlin, Justin W. Bernick and Benjamin F. Holt of Hogan Lovells US LLP and Brian C. Fries and James Moloney of Lathrop GPM LLP.
Pfizer is represented by Dimitrios T. Drivas, Robert A. Milne, Raj S. Gandesha, Edward Thrasher and Kathryn Swisher of White & Case LLP and Joseph Rebein, Zach Chaffee-McClure and Ashley Harrison of Shook Hardy & Bacon LLP.
The MDL case is In re: EpiPen Marketing, Sales Practices and Antitrust Litigation, case number 2:17-md-02785, in the U.S. District Court for the District of Kansas.
--Additional reporting by Khorri Atkinson, Anne Cullen and Meghan Kelly. Editing by Philip Shea.
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