Picture: Paul Farrell, Jr. starts new law firm, updates status of national opioid litigation.

Cabell, Huntington opioid trial pushed back indefinitely

This story of Paul Farrell, Jr.’s federal case against opioid companies was originally published in the Charleston Gazette-Mail.

A federal trial for a case filed by Huntington and Cabell County against drug companies they accuse of creating and fueling the opioid epidemic in the area will not take place January as planned, due to COVID-19.

The lawsuits argue the companies had a duty to monitor and report the high volume of pills being shipped into the area but ignored it.

The case had been set to go to trial Jan. 4, 2021, but in an order released Thursday, U.S. District Court Judge David A. Faber continued the trial indefinitely due to COVID-19. A pretrial conference will now take place Jan. 6 and Feb. 3 at 11 a.m. via videoconference to further discuss the case.

The co-leading attorneys for plaintiffs in nearly 2,000 cases across the country — Paul T. Farrell Jr. of Farrell Law in Huntington, Paul J. Hanly Jr. of Simmons Hanly Conroy and Joe Rice of Motley Rice LLC — said they plan to work with the court to push the litigation forward.

“COVID-19 is ravaging our country, and so is the opioid crisis. Both require resources and dedication now to help those in need. While a traditional trial may not be possible, progress can still be made and the facts behind the roles of the distributors in the opioid epidemic revealed,” they said in a joint statement released Thursday.

The trial is expected to take 12 weeks and could see as many as 200 witnesses traveling from across the country to testify. Dozens of attorneys and their employees are also expected to be in West Virginia for the trial.

Cabell County and Huntington filed suit against AmerisourceBergen Corp., McKesson and Cardinal Health — the “Big Three” drug distributors — in 2017, claiming they helped create and fuel the opioid crisis in the United States and Appalachia by selling millions of pain pills.

U.S. Drug Enforcement Administration data show that from 2006 to the end of 2016, West Virginia received 853.5 million prescription pain pills. Of those, 65 million — about 96 per person per year — were distributed in Cabell County, with millions more going to surrounding counties.

The defendants filed a motion for a trial continuance on Nov. 30, stating the COVID-19 pandemic had “exploded” with the national rate of daily new cases quadrupling since the court continued the trial to its January date in October. Kanawha County, where the trial is set to be held, has doubled its numbers.

They wrote that having the trial in January would be a nightmare in trying to isolate and keeping witnesses in good health due to the number of witnesses, attorneys and weeks it is expected to take.

“If the health risks were too severe to try this case in October — and the Court correctly concluded that they were — we now know that they certainly will be too severe to try it in January,” they wrote.

They asked in their motion to continue it to April 19, until vaccines for the virus are made available and the numbers start to subside. Because the plaintiffs seek money for a decades-long plan to address the opioid epidemic and not immediate relief, pushing the trial back a few months would not harm them, the defendants wrote.

The plaintiff attorneys did not dispute the seriousness of the rise in COVID-19 cases, but said substance use disorder did not disappear during the pandemic.

“In an article recently published in the Journal of the American Medical Association, the authors noted there is evidence of increased opioid overdoses associated with the social and economic consequences of the COVID-19 pandemic, and the pandemic has also made it more difficult for individuals suffering from opioid use disorder to obtain effective treatment,” they wrote.

While the defendants argued there are two options — hold the trial as scheduled Jan. 4 or push it to April 19 — the plaintiff attorneys argued there were more.

They added while it might not be possible to hold an in-person trial on Jan. 4, they believe it could proceed in a similar way, with parties also submitting some testimony from previous interviews for the court to review at its own leisure. They said several courts across the country had conducted remote trials this way.

The defendants said their proposal “raises more problems than it solves” and they must given the chance to present the case as a whole, not “through a jumble of evidentiary fragments to be pieced together later like a jigsaw puzzle.”

In Thursday’s order, Faber asked the plaintiffs to provide better details of what a “remote” trial would look like.