With an August trial date set for Cabell County and the city of Huntington’s federal lawsuits against several drug firms, the clock is now ticking on a $1.25 billion settlement offer made last week to resolve all West Virginia cases.
The Cabell County and Huntington cases against the “Big Three” distributors — McKesson Corp., Cardinal Health and AmerisourceBergen Drug Corp. — will go to trial together Aug. 31, U.S. District Judge David A. Faber of the Southern District of West Virginia ruled during a hearing in Charleston on Thursday.
The cases allege the companies fueled the opioid crisis by pumping pills into the region.
The trial date was set after the defendants waived their right to a jury trial earlier this week and the plaintiffs’ request for the case to be decided by a judge, not jury, was approved.
The plaintiffs will have five weeks to present their case to Faber before going on a two-week break and returning for one final week of evidence presentation. The defense will then get six weeks to counter those arguments.
Plaintiff attorneys Paul T. Farrell Jr., who represents the Cabell County Commission, and Charles “Rusty” Webb, attorney for the city of Huntington, both had hoped for a June trial date, with a trial format of the case being presented for week-long periods each month throughout the year.
The defendants had previously requested a trial date in summer 2021, arguing too much evidence exchange was still remaining in the case for it to go to trial this year.
The plaintiffs argued under their proposed trial schedule that evidence exchange could continue throughout the trial.
Faber met the two in the middle and set the date about six months out, stating he felt the plaintiffs’ proposed trial schedule would be a burden on the court.
After the hearing, both Farrell and Webb voiced their disappointment that an earlier trial date had not been set.
“We are ready. We’ve been ready,” Farrell said. “It’s not difficult to [see] how West Virginia has suffered from this epidemic.”
Webb said placing the hearing too far out takes the pressure off the defendants to accept a settlement deal proposed by Farrell last week, when about 250 attorneys met in Charleston to discuss an outcome that would resolve about 400 claims filed against drug firms in state and federal court. The meeting came after an $18 billion universal settlement for all claims across the country fell apart last month.
The $1.25 billion settlement offer is on the table until Farrell presents opening statements Aug. 31 in Charleston. The settlement would go directly to the plaintiffs in the case, and attorneys’ fees would be awarded separately by a panel of West Virginia judges currently overseeing cases filed in state court.
Much of Thursday’s hearing was spent setting deadlines for motions to be submitted to the court. In the meantime, Faber said he plans to appoint a “special master” who will work as a middleman between the sides and Faber to help keep the case moving smoothly toward trial.
At a hearing last month, when the defense complained too much evidence exchange was outstanding to go to trial this year, Farrell said he needed just 30 days to get all documentation to the defense.
Since then, the Cabell County Commission has turned over 1.2 million pages and 3,000 documents from about eight departments. Huntington has sent about 600,000 pages from about 5,000 documents from about 30 departments.
They expect to be finished with that by mid-March.
Enu Mainigi, an attorney for Cardinal Health, said the defendants have had to go out of their way to separately subpoena other entities involved in the opioid epidemic who the plaintiffs claim do not answer to them, but might have a vast understanding of the opioid epidemic, such as the Cabell-Huntington Health Department.
“The plaintiffs have selected a very narrow piece of the discovery pie,” she said.
Staffing issues and documents only being saved in hard copy format are delaying the defense’s ability to move more quickly, other attorneys said.
Farrell complained the case could go on forever based on those complaints unless Faber set a trial date.
“This isn’t going anywhere until you put us on the clock,” he said.
The Cabell County and Huntington cases had previously been joined as part of a multi-district litigation being heard by Cleveland-based U.S. District Court Judge Dan A. Polster. However, they were sent back to Charleston earlier this year after Polster made several rulings and a determination the cases were ready for trial.
The defense had previously argued any ruling made by Polster while the cases were in Cleveland were not the “law of the case” and Faber did not have to follow them, which would essentially send the case back to square one, should Faber agree.
While Faber is giving the sides time to write to the court about those arguments, he said he intended to follow Polster’s rulings unless the parties can persuade him that circumstances have changed in special cases.
“You’re swimming upstream,” he told the defense.
Defense attorneys declined to speak with media after the hearing and asked that questions be sent to public relations personnel.