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Law360 (January 6, 2021, 7:05 PM EST ) A West Virginia federal judge on Wednesday set a May trial date for the three major drug distributors over claims they fueled the opioid crisis, waving away their protestations that the coronavirus vaccine rollout has been troublingly slow and saying it's time to "get some closure."
The suit brought by West Virginia's Cabell County and its county seat, Huntington, is expected to be a dramatic test of allegations that the nation's three major distributors — AmerisourceBergen Drug Corp., Cardinal Health Inc. and McKesson Corp. — wantonly sent out narcotics and unleashed a devastating plague of addiction. The trial has been delayed because of the pandemic.
U.S. District Judge David Faber said Wednesday that he will set the expected 12-week trial for May 3. With six weeks for the plaintiffs' case, that would have the defense case starting around June 28 and the trial finished by roughly Aug. 9, the judge said.
Cardinal Health lawyer Steven Ruby, speaking for the defendants, argued early in the hearing that leading infectious-disease experts believe the timeline for safety is moving back.
"The latest comments that we've heard in the press from Dr. [Anthony] Fauci suggest now that he believes that a return to what I believe he characterized as 'normalcy or something like normalcy' would not take place till early summer or fall," Ruby said.
But Judge Faber was feeling optimistic, saying he got a vaccine dose yesterday, and said having a date on the books is important for momentum.
"I hear what you're saying, Mr. Ruby, but I think this has gone on an awful long time, and we need to get some closure. And that's not going to happen until we get a schedule. … I'm inclined to err on the side of getting this thing moving, and we'll just take it from there," the judge said.
The judge also heard argument Wednesday on various motions, most notably the potential testimony for the plaintiffs of public health expert Dr. Rahul Gupta, which the defendants seek to block.
Gupta, the onetime head of the Kanawha-Charleston Health Department and later the West Virginia State Health Office, is now a leader in President-elect Joseph Biden's transition team relating to drug control policy.
In this trial, Gupta has been labeled a "non-retained" hybrid witness, but the defendants claim he is actually a stealth expert witness. In a state court opioid case Gupta is being paid as an expert witness, they said, but he hasn't submitted the requisite disclosure report for an expert witness in this federal case, a failure they say should be sanctioned.
"Plaintiffs' counsel have taken the position that [Gupta] is being paid over there to opine on the same things … but that he's not being paid in this case," Ruby said. "Now, to accept that, Your Honor, would set a terrible precedent and open the floodgates to play a shell game." Ruby asked the judge to order a sanction provided for under federal rules, namely, excluding Gupta as a witness.
The judge did not rule on this and other motions at Wednesday's hearing.
Another opioid bellwether, set to take place in Ohio against major pharmacy chains, has been delayed as well. That one will be held before the Ohio federal judge overseeing the national opioid multidistrict litigation.
Three lead lawyers for the plaintiffs said jointly in an emailed statement Wednesday, "If not for the delays caused by the COVID-19 pandemic, the public would already know the truth about how the opioid distributors created and fueled the opioid epidemic."
Ruby did not immediately respond to a request 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 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 Bruce Goldman.
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