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A federal judge on Friday rescheduled a West Virginia trial that aims to hold the nation’s largest prescription drug distributors accountable for the opioid epidemic, after the companies warned that the proceedings in a Charleston courtroom could become a coronavirus “super-spreader.”
U.S. District Judge David Faber gave no reason for postponing the trial, which was set to start in 10 days. His two-page order says the trial will now begin on Jan. 4, the day requested by the wholesale drug distributors.
Faber said he would explain his decision to reschedule the trial — which pits the Cabell County Commission and City of Huntington against drug distribution giants McKesson, AmerisourceBergen and Cardinal Health — in a memo at a future date.
Cabell County and Huntington filed lawsuits against the drug distributors in 2017, alleging the companies caused a “scourge of death and addiction” by flooding their communities with powerful prescription painkillers like OxyContin and hydrocodone. More than 3,000 local governments across America have filed similar lawsuits. Cabell County and Huntington are next in line to have their cases go to trial.
Earlier this week, the “Big Three” distributors argued that holding the trial later this month in West Virginia would put hundreds of people at risk of contracting COVID-19. Scores of lawyers and some 200 witnesses — many from outside the state — are expected to attend.
Cabell County’s and Huntington’s attorneys responded that the drug distributors are using the coronavirus pandemic as an excuse to derail the landmark trial. The lawyers had urged Faber to reject the distributors’ request to put off the trial until January.
“Beginning trial is not the doomsday scenario that the [companies] portray…” the lawyers told Faber in a court filing late Thursday.
During the trial, the attorneys for Huntington and Cabell County plan to unveil thousands of pages of the distributors’ internal documents previously kept secret.
“It is the first time the newspapers will have an opportunity to review all of the evidence and report on the [companies’] wrongdoing for the whole country to see,” the lawyers wrote to Faber. “[The distributors] 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.”
In the companies’ request to postpone the trial, their attorneys cited a purported surge in coronavirus cases in Kanawha County, but Huntington’s and Cabell’s lawyers told Faber that Kanawha’s COVID-19 cases are trending down.
“[The companies] paint an exaggerated picture of COVID-19 in West Virginia…,” the lawyers said in the filing. “West Virginia and Kanawha County are among the safer places in America.”
Huntington’s and Cabell’s lawyers allege that the distributors want to “delay their date of legal reckoning” in hopes that an “intervening event,” such as a favorable ruling in one of their numerous requests to narrow their liability, will improve their chances of winning.
The two sides had already talked about safety precautions with courthouse officials: wearing face masks, social distancing and limiting the number of witnesses and lawyers in the courtroom.
Faber will oversee a bench trial: he will rule on the case and there won’t be a jury.
In their filing, Cabell County’s and Huntington’s attorneys say the “opioid epidemic continues to kill West Virginians at a faster rate than COVID-19. So far this year, 364 people have died in West Virginia after contracting the coronavirus, while the opioid crisis claims the lives of about 800 West Virginians every year.”
The state has the highest drug overdose death rate in the nation, and preliminary reports show that overdoses have increased during the pandemic.
“West Virginia is currently experiencing two of the worst public health catastrophes of our time, one being a pandemic flu and the other being a man-made drug crisis that the [distributors] caused, and they should be responsible for abating,” the lawyers wrote to the judge. If the trial is postponed, they said, “people will continue to become addicted and die.”