City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al
Filing
1170
MEMORANDUM OPINION AND ORDER regarding the granting of defendants' 1093 MOTION to continue the trial in this matter; scheduling a final Pretrial Conference for 12/8/2020 at 11:00 AM in Charleston before Senior Judge David A. Faber. Signed by Senior Judge David A. Faber on 11/19/2020. (cc: counsel of record who have registered to receive an electronic NEF) (jsa)
Case 3:17-cv-01362 Document 1170 Filed 11/19/20 Page 1 of 6 PageID #: 41181
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
Plaintiff,
v.
CIVIL ACTION NO. 3:17-01362
AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
CABELL COUNTY COMMISSION,
Plaintiff,
v.
CIVIL ACTION NO. 3:17-01665
AMERISOURCEBERGEN DRUG
CORPORATION, et al.,
Defendants.
________________________________
MEMORANDUM OPINION AND ORDER
On October 9, 2020, the court granted defendants’ motion to
continue the trial in this matter and continued the trial until
January 4, 2021.
(ECF No. 1093).
The reasons for the court’s
decision follow.
Defendants moved to continue the trial because of the health
risks associated with holding a twelve-week trial during the
COVID-19 pandemic.
In so doing, they pointed to various
statistics showing that COVID-19 cases were on the rise in West
Virginia, as well as recent guidance from the Centers for Disease
Case 3:17-cv-01362 Document 1170 Filed 11/19/20 Page 2 of 6 PageID #: 41182
Control (CDC) stating that airborne transmission of the virus was
possible.
Plaintiffs argued that defendants’ statistics were
both outdated and misleading.
On March 13, 2020, the President of the United States
declared a national emergency under the National Emergencies Act,
50 U.S.C. § 1601 et seq., in light of the COVID-19 pandemic.
The
impact of the pandemic is well-documented and, in order to lessen
the spread of the disease, a number of measures have been
instituted in this court over time, including the delay of
certain civil and criminal matters.
See General Order and
General Order # 3 entered in In Re: Court Operations Under the
Exigent Circumstances Created by the COVID-19 Pandemic, No.
2:20-mc-00052 (S.D.W. Va. March 13, 2020 and March 23, 2020)
(Johnston, C.J.).
On April 14, 2020, the earlier delay of in-
person proceedings was extended through May 31, 2020.
See
General Order # 5 entered in In Re: Court Operations Under the
Exigent Circumstances Created by the COVID-19 Pandemic, No.
2:20-mc-00052 (S.D.W. Va. April 14, 2020) (Johnston, C.J.)
(ordering all civil and criminal petit jury selections and trials
scheduled to commence from the date of the order through May 31,
2020 continued until further order of the court and that the time
period of continuances implemented by the order be excluded under
the Speedy Trial Act).
On May 22, 2020, civil and criminal petit
jury selections and trials scheduled to commence from the date of
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the order through June 30, 2020 were continued until further
order of the court.
See General Order # 6 entered in In Re:
Court Operations Under the Exigent Circumstances Created by the
COVID-19 Pandemic, No. 2:20-mc-00052 (S.D.W. Va. May 22, 2020)
(Johnston, C.J.).
On June 25, 2020, an order was entered allowing for the
resumption of jury trials effective July 1, 2020.
See General
Order # 7 entered in In Re: Court Operations Under the Exigent
Circumstances Created by the COVID-19 Pandemic, No. 2:20-mc-00052
(S.D.W. Va. June 25, 2020) (Johnston, C.J.).
However, on
September 18, 2020, due to the increased presence of COVID-19 in
the community, all civil and criminal petit jury selections and
trials were once again continued until further order of the
court.
See General Order # 9 entered in In Re: Court Operations
Under the Exigent Circumstances Created by the COVID-19 Pandemic,
No. 2:20-mc-00052 (S.D.W. Va. September 18, 2020) (Johnston,
C.J.).
While General Order #9 did not directly control whether this
bench trial could go forward, the court could not ignore that, as
of September 18, 2020, the United States District Court for the
Southern District of West Virginia had concluded:
. . . that over the past few weeks, the presence of the
virus in the community has increased. According to
figures from the West Virginia Department of Health and
Human Resources as well as other public health
authorities, daily positive case counts have increased
significantly, hospitalizations and deaths have
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increased, and a majority of the counties that comprise
the Southern District of West Virginia are considered
to be at a higher risk level for indoor in-person
activities.
Id.
This bench trial involves a significant number of
individuals.
As well, counsel and witnesses will be traveling
from various parts of the country to West Virginia, further
heightening the opportunities for transmission of the virus.
The
court has a responsibility to proceed in a manner that not only
aims to protect the trial participants, but also the other
occupants of the courthouse.
For all these reasons, the court
determined that a continuance of the October 13, 2020, trial date
was prudent.
Trial is scheduled to commence on January 4, 2021.
A final
pretrial conference is hereby SCHEDULED for December 8, 2020, at
11:00 a.m., in Charleston.
The bench trial and the pretrial
conference will be conducted in accordance with accepted safety
protocols.
Each of the five parties will be permitted to have
five individuals present in the courtroom for the trial, for a
total of twenty-five lawyers and support personnel at any time.
All counsel and trial personnel will be required to wear masks at
all times while in the courthouse and while in the courtroom, and
observe the social distancing guidelines that are marked in the
courtroom and the courthouse itself.
be set aside for witnesses.
A designated safe area will
Each day the respective parties will
be required to certify that all individuals who will be present
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in the courtroom are symptom-free.
Further protocols and
adjustments may be made in order to respond to conditions and
circumstances that may arise.
These restrictions, including limitations on in-person
attendance in the courthouse, are imposed solely to limit the
potential spread of and/or exposure to the virus.
However,
mindful of the presumption of openness that accompanies courtroom
proceedings, trial proceedings will be made available
electronically so that the respective trial teams, members of the
public, members of the press, and other interested parties can
observe the proceedings.
To make use of this technology, use one
of the following methods:
Web browser:
https://join.uc.uscourts.gov/invited.sf?secret=aBe.nuT4
rMl0Gfyale7atQ&id=314041604
Video system, Jabber or Lync:
wvsdcha5600pub@uc.uscourts.gov
Phone: 5713532300, then enter 314041604
Persons using remote access to proceedings are reminded of
the general prohibition against photographing, recording, and
rebroadcasting of court proceedings.
83.10.
See Local Rule Civ. P.
Violation of these prohibitions may result in sanctions,
including removal of court issued media credentials, restricted
entry to future hearings, denial of entry to future hearings, or
any other sanctions deemed necessary by the court.
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The Clerk is directed to send copies of this Order to those
counsel of record who have registered to receive an electronic
NEF.
IT IS SO ORDERED this 19th day of November, 2020.
ENTER:
David A. Faber
Senior United States District Judge
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