Opioid MDL Bellwether In SF Gets ‘Shocking’ Cut To Trial Time

An impending bellwether trial involving San Francisco and several drug companies in multidistrict opioid litigation will be among the shortest opioid trials yet despite shaping up as one of the largest, a California federal judge said, an admittedly startling move accompanied by other streamlining efforts.

Senior U.S. District Judge Charles R. Breyer outlined the surprisingly short schedule during a pretrial conference ahead of the trial’s April 25 kickoff, and he made clear that the timetable would likely raise eyebrows among the dozens of attorneys attending the Zoom hearing.

“Let me get to the moment that you’ll all be shocked to hear, which is, I’m giving each side 45 hours to present their case,” Judge Breyer said, acknowledging a dramatic downward deviation from San Francisco’s proposal of 150 hours per side and the companies’ proposal of 75 hours per side.

Without waiting for reaction, Judge Breyer went ahead and described what might be going on in the heads of lawyers who’ve worked on the case since its inception in 2018 and its remand from the main MDL court in 2020: “Oh my goodness, I’ve spent years, how could we have 45 hours?”

In hopes of alleviating concerns, the judge then explained that the abbreviated allotment is sufficient because direct witness examinations will occur in the form of written declarations, as opposed to live testimony. The 45-hour limits only apply to subsequent cross-examinations and redirects, he said.

“So your case is really going in without a time limit. Your cross is going in with a timer. And your redirect is going in with a timer,” Judge Breyer explained. “And I am convinced, that at this point, that 45 hours per side is more than adequate.”

But lawyers for the city and county did not immediately seem similarly convinced. Richard M. Heimann of Lieff Cabraser Heimann & Bernstein LLP, counsel for San Francisco, quickly asked whether “considerable non-expert testimony” in the trial would count against the time limit.

San Francisco supplied a matrix that showed other opioid trials using far more time, with the shortest consuming about 55 hours per side and some of the longest exceeding 90 hours per side. The city and county noted that its case could be the first to go to verdict against three sectors in the pharmaceutical supply chain — manufacturers, wholesale distributors and pharmacies — and sharply criticized the companies for advocating 75 hours of trial time apiece for the opposing sides.

The defendants include divisions of drug manufacturers Allergan, Endo Pharmaceuticals and Teva Pharmaceuticals, distributor Anda Inc. and retail pharmacy colossus Walgreens. They’re all accused of contributing in various ways to San Francisco’s sky-high rates of fatal opioid overdoses and related expenses for health care and law enforcement.

In other efficiency moves, Judge Breyer  said that expert declarations would be capped at 150,000 words per side, the same length suggested by the defense but only half the 300,000 words per side that San Francisco requested.

The judge further delineated timelines and processes related to briefing. In doing so, he evinced a desire to steer the drawn-out litigation toward the finish line expeditiously — something that attorneys in other cases have previously called one of Judge Breyer’s most noteworthy skills.

LAW360: https://www.law360.com/articles/1476914/opioid-mdl-bellwether-in-sf-gets-shocking-cut-to-trial-time

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