MORGANTOWN — The federal judge overseeing the nationwide opioid litigation against manufacturers, distributors and retailers has denied a motion to recuse himself brought by several of the defendants.
Eight defendants filed their motion to disqualify Judge Dan Polster on Sept. 14, alleging public statements he’s made indicate bias and lack of impartiality. Their motion came on the heels of a series of Polster rulings denying various defendants’ motions for summary judgment; those rulings opened the door for settlement or jury trial, and the first trial is set for Oct. 21.
Polster said in his Thursday denial order, “The magnitude and significance of the “opioid crisis” and the Opioid Litigation cannot be overstated. … The human toll is staggering, and the continuing economic burden on government at all levels is extreme. Publicly acknowledging this human toll does not suggest I am biased; it shows that I am human.”
The multidistrict litigation is in the U.S. District Court for the Northern District of Ohio. Here’s how Polster’s order came together.
The motion was brought by distributors AmerisourceBergen, Cardinal, McKesson, Walgreens and Schein, and retailers CVS, Rite Aid and Walmart.
They alleged that Polster made statements in court and out of court demonstrated a personal objective to “do something meaningful to abate the opioid crisis, with the funding to be provided through defendants’ settlements.
He made numerous improper comments to the media and in other forums about the litigation, they alleged. He’s prejudged the merits and outcome of the case. And he’s been singularly focused on and involved in settlement talks.
Polster declared a national opioid crisis at the very first hearing, they alleged, assigned fault and stated a goal. “The court has expressed a strong personal conviction that his role is to strong-arm the parties into a settlement that will abate an ongoing opioid crisis, not just resolve the legal issues presented by the cases.”
Two days after the eight defendants moved to disqualify, plaintiffs filed their memo of opposition.
They note that the defendants base their arguments on statements made in January 2018 and other statements more than a year old. They made no timely objections to those statements and have participated in settlement talks. “If there had ever been a basis for disqualification, defendants long ago waived it.”
While defendants misquote Polster’s words, they assert, “None of the statements the court actually made reflect prejudgment about the liability of any party, but rather are general statements about the tragedy of the opioid crisis.”
Plaintiffs and Polster both note that the case is on two tracks: settlement and trial.
Polster, in his order, gives a brief history of the case. The multidistrict litigation was brought before him in 2017, growing from 100 cases to more than 2,000 – from city and county governments and Native American tribes across the country. At the same time more than 400 similar cases are proceeding in state courts.
“I was very careful to assign responsibility (as opposed to potential legal liability) to everyone in the case – including not only the MDL defendants and plaintiffs, but also the federal government, the medical profession, and even individual opioid drug users,” he wrote. “All of these groups are responsible to some degree for having created the opioid crisis, and all who have the power to do so must now take some responsibility for fixing it. As the MDL Judge, the latter includes me, and I said so.”
His standard mode of operation is to address settlement early and often. That defendants will pay is a simple fact of litigation and not an expression of bias or prejudgment. One result of his work, he said, is thaton Sept. 16, OxyContin maker Purdue Pharma embarked on a multibillion-dollar plan to settle the thousands of lawsuits by transforming itself in bankruptcy court into a sort of hybrid between a business and a charity.
Like the plaintiffs, he also cites the questionable timing – more than 18 months – of the motions just weeks before the first trial. Transferring the case to another, unprepared, judge at this point would disrupt everything and overwhelm the court. And it would shift the focus of litigation to the state courts. “The likelihood of a nationwide, global resolution will wane.”
He explains why he’s spoken out. “Ordinarily, the resolution of a social epidemic should be the responsibility of our other two branches of government, but these are not ordinary times. I feel it is important for our citizens to know what I am doing and to have confidence that the judicial branch is up to the task – I have said so publicly.
“Current levels of opioid overdoses make it painfully obvious that our system of ‘controls,’ which depend jointly upon all levels of government, the pharmaceutical industry, and the medical profession, has not performed the way it should,” he said. “The result one way or another of a single bellwether trial, or even of 2,000 trials, cannot bring about systemic change. This is why I have tried to engage everyone, including even non-parties to this litigation (such as State Attorneys General and the DEA), to look at ways to improve the system.”
Tweet David Beard @dbeardtdp Email dbeard@dominionpost.com
