A week before the trial of Eric Kay is scheduled to begin in the overdose death of pitcher Tyler Skaggs, attorneys for the former Angels communications director have asked a federal judge to delay proceedings for at least a month.
In a motion filed Monday in U.S. District Court in Fort Worth, Texas, attorneys Michael Molfetta and William Reagan Wynn said prosecutors informed them that a grand jury could return a superseding indictment against their client as soon as Tuesday.
The superseding indictment, according to the motion, would add distribution of oxycodone to a count alleging Kay conspired to “possess with intent to distribute” fentanyl “beginning in or before 2017.”
“Undersigned counsel have prepared to defend the specific allegations in the indictment and the addition of a different controlled substance to the conspiracy allegation requires undersigned counsel to change their trial strategies, potentially including calling different witnesses and seeking to introduce different exhibits,” the motion said.
Skaggs was found dead in his hotel room in Southlake, Texas, on July 1, 2019, before the Angels started a series against the Texas Rangers. Investigators found a counterfeit oxycodone pill in Skaggs’ hotel room laced with fentanyl. The autopsy report ruled that he died from choking on his vomit because of “mixed ethanol, fentanyl and oxycodone intoxication.”
Kay was charged via criminal complaint in August 2020, then indicted on two counts in October 2020. That included a charge of distributing the fentanyl that led to Skaggs’ death. Kay has pleaded not guilty.
The trial has been delayed four times for various reasons, including one of Kay’s attorneys contracting COVID-19.
In the motion, the attorneys said their trial strategy would seek to “exclude any evidence of Mr. Kay’s alleged extrinsic oxycodone activities” though discovery included a “significant amount of information concerning Mr. Kay allegedly delivering oxycodone to Tyler Skaggs and other persons.”
“Undersigned counsel concluded evidence of the alleged deliveries of oxycodone would not be admissible to prove the allegations contained in count one,” the motion said.
By choosing that strategy, according to the motion, the attorneys “focused solely on witnesses who could possibly testify concerning possible sources” for the counterfeit pill found in Skaggs’ room that is “the only confirmed fentanyl in the case.”
Prosecutors said in an August court filing that they plan to present testimony from five Major League Baseball players who alleged they received oxycodone, not fentanyl, from Kay. The players haven’t been publicly named.
“Denial of the requested continuance will almost assuredly result in a miscarriage of justice,” the motion by Kay’s attorneys read, “because, at this late date and as set out above, undersigned counsel are unable to intelligently adjust their trial strategies, determine which witnesses should be called and determine which exhibits should be marked for admission given the substantive change to the conspiracy allegation one week before trial.”