By Jeff Overley

Law360 (October 5, 2020, 11:00 PM EDT ) Major drug distributors on Monday asked a West Virginia federal judge to delay an imminent bellwether trial in multidistrict opioid litigation by warning of a coronavirus "super-spreader" outbreak, while in Ohio a federal judge postponed another bellwether trial in the MDL because of COVID-19 concerns.

The continuance motion from McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp. asked U.S. District Judge David A. Faber to push the West Virginia trial's start date from Oct. 19 to Jan. 4, observing that local coronavirus cases have "soared" and asserting that recent incidents of mass infections illustrate how easily the pathogen can spread.

"The national events of the last few days only serve to underscore the risks of bringing together large groups of people from across the country who might unwittingly infect each other and could serve as a 'super-spreader' event in Charleston," where the trial will happen, according to the motion.

The distributors, which are accused of turning a blind eye to blatantly suspicious orders of prescription painkillers, specifically cited "recent experience within the tightly controlled world of professional sports" for the proposition that "precautions taken by one trial team in this case can be easily and swiftly upended" if another trial team has members who are unwittingly infected or who conceal symptoms of COVID-19.

A number of professional sports teams, including the NFL's Tennessee Titans, have experienced sizable coronavirus outbreaks that led to games being postponed.

Monday's motion didn't specify other examples of prominent suspected outbreaks, but it called to mind the White House Rose Garden ceremony on Sept. 26 for the nomination of Seventh Circuit Judge Amy Coney Barrett to serve on the U.S. Supreme Court. President Donald Trump, first lady Melania Trump and multiple U.S. senators were among the ceremony attendees who later tested positive for the virus.

In a separate development Monday, U.S. District Judge Dan Aaron Polster indefinitely delayed a bellwether trial against pharmacies that was set to start on Nov. 9 in Ohio federal court. Judge Polster's move was disclosed in a short docket entry that cited "the ongoing COVID-19 pandemic."

McKesson, Cardinal Health and AmerisourceBergen on Monday filed a supplemental memorandum calling attention to Judge Polster's action, observing that the rate of new coronavirus cases in the Charleston area is roughly four times higher than the rate in the Cleveland area.

The supplement also noted that the Centers for Disease Control and Prevention on Monday updated its guidance on COVID-19 to warn of airborne transmission that can occur because the virus may "linger in the air for minutes to hours."

"This new CDC statement underscores the danger of a trial whose participants would be required to spend many hours each day together in the same indoor space — in a high-risk county — for weeks on end," the distributors wrote.

Motley Rice LLC co-founder Joe Rice, a lead attorney for local government plaintiffs suing drug companies in the MDL, told Law360 with respect to the distributor's delay bid that "there is a remarkable timing of this motion, coming right after the president announced his diagnosis."

"[This] is a non-jury trial with just three defendants," Rice said by email. "The court has reached over backwards to make the parties as safe as possible in this environment. With cooperation, this trial can be done safely and timely."

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.

With respect to the Ohio bellwether trial's postponement, Rice said that the plaintiffs are "very disappointed," but that the logistics of jury selection and keeping jurors together during a holiday break "just presented too many complications, risk and cost."

"The [pharmacy defendants] refused the offer made to try the case as a non-jury case. This would have eliminated the vast majority of the risk and made the case go forward," Rice said, adding that "COVID will end, and we will be prepared for multiple simultaneous trials all over the country."

The drug distributors have offered billions of dollars to settle the MDL's roughly 3,000 cases as well as cases filed by state attorneys general, but efforts to finalize a deal have been hampered by the pandemic and ongoing disagreements over the terms. The pharmacies haven't publicly offered to settle. With respect to both types of defendants, bellwether trials could resolve legal sticking points and help nudge the parties toward compromise.

The pharmacy defendants — including CVS Health Corp., Walgreen Co., Walmart Inc. and Rite-Aid Corp. — had no immediate comment on Monday. They're accused of improper distribution, which was the planned focus of the trial beginning Nov. 9, as well as improper dispensing, which is part of the planned focus of another bellwether trial scheduled for May before Judge Polster.

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; and County of Cuyahoga v. Purdue Pharma LP et al., case number 1:17-op-45004, and County of Summit et al. v. Purdue Pharma LP et al., case number 1:18-op-45090, 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.

--Editing by Michael Watanabe.

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