To keep its opioid case moving forward during the pandemic, New York schedules Frye hearings.
New York State Supreme Court in Suffolk County heard the first pretrial hearing in the opioid supply chain suit which allowed cities, counties, and New York state to lay out their case against those deemed responsible for the crippling epidemic. The defendants in the suit include pharmacies and drug distributors. Some of the big drug companies being connected to distributors include Johnson & Johnson, Teva, and Endo Pharmaceuticals Inc., as well as major pharmacies such as CVS and Walgreens. The New York-based plaintiffs are seeking funds to be allocated to the communities impacted.
“This case is significant,” said Harry Nelson, founder Nelson Hardiman, not involved in the hearing. “It will be the first comprehensive case against not only the leading opioid manufacturers but also, for the first time, the major distributors, including McKesson, Cardinal Health, and AmerisourceBergen. The trial will give us a view of the evidence to support different theories of liability for the different roles played by distributors and manufacturers in enabling and fueling opioid deaths and other harm.”
“We’re going to lay out the whole case for the court, for the public,” said Hunter Shkolnik, who represents some municipalities present in the hearing. “This will be the first time the public hears the whole dirty story, the whole integration of the opioid sales chain, which is how it ended up flooding the market.”
The pandemic has significantly delayed proceedings, so many have been anxiously awaiting developments in the case, first filed in 2017. For those closely watching, it will be especially interesting to see whether the defendants will maintain a united front or shift blame onto each other.
“Either way, it’s a win-win for plaintiffs,” said David Noll, a law professor at Rutgers University. “If defendants point the finger at each other, from a plaintiffs’ perspective, that’s wonderful, because you have a defendant doing your work for you. Everyone is conceding there’s liability and the task of the court becomes determining who is liable – not if there’s liability.” Noll added, “However, if the defendants unite, it will support the plaintiff’s assertion that the defendants engaged in a broad conspiracy to flood the market with deadly, addictive drugs.”
“Ultimately, defendants are likely to err on the side of sticking together,” said Richard Ausness, a law professor at the University of Kentucky. “If they can present a united front, they can pool information and resources. If they fall out, the plaintiffs can use the divide and conquer technique to maybe pick a few of them off.”
The first trial date is forecasted for fall so long jury selection can be completed despite the coronavirus. The defendants have continually sought a jury trial, which currently cannot move forward due to the pandemic.
In March, New York Attorney General Letitia James released a statement regarding the delay of the hearing due to the pandemic, saying, “New York’s opioid trial will have the eyes of the nation on it and we very much expect individuals from around the country to be in attendance. Out of an abundance of caution, we fully accept and agree with the court’s decision to delay a trial against the opioid manufacturers and distributors until the ongoing risk of coronavirus subsides.”
Shkolnik explained, “The judge can’t have a jury trial and the defendants objected to a bench trial, so the judge was kind of in limbo. As a result, Justice Jerry Garguilo decided to move forward with the plaintiff’s Frye hearings to keep the case moving forward.” This allows the judge to determine what will be admissible at trial with regards to expert testimony and evidence.
“Soon, the deadly scheme perpetrated by these companies will be presented in open court and laid bare before the American people, and no one will be able to deny the immoral actions that led us here,” James added. “We are committed to holding each of these companies responsible for their role in the opioid crisis.”
More than 3,000 lawsuits remain pending against drug companies over the opioid crisis. In the only major opioid trial, J&J was ordered to pay $465 million to Oklahoma in 2019.