Companies seek judge’s removal

Defendants in opioid suit claim bias as grounds for recusal

Five weeks before a landmark federal civil trial in the opioid epidemic, the giant retail pharmacy chains and drug distributors that are defendants in the bellwether Ohio case are seeking to disqualify the judge from overseeing their case and nearly 2,300 other opioid-related lawsuits before him.

In a brief filed in federal court at 1:24 a.m. on Saturday, the defendants’ lawyers claimed that over the past 21 months, Judge Dan Polster has shown bias against the defendants by making extensive comments about his intention to settle the sprawling case and bring relief as quickly as possible to local governments and individuals hit hard by crisis.

He made such remarks at the first public hearing in the case, in January 2018, when he announced his goal of settling the case rather than having lengthy, costly trials and subsequent appeals.

He continued to press his goal of settlement in public appearances and comments to the media. Articles in The New York Times with quotes from the judge are among those cited in the lawyers’ brief.

The two groups of defendants who filed the motion include the retailers Walgreens, Walmart, Rite Aid and CVS, and the drug distribution companies Cardinal Health, AmerisourceBergen and McKesson.

Despite Polster’s initial statement that he wanted to resolve the case within a year, not only has that deadline long passed, but he also has moved the litigation along two parallel tracks. One is aimed at settlement, the other is directed at litigation, featuring the trial scheduled to begin next month.

Legal experts said they were surprised at the timing of the move to disqualify the judge, as well as what they called the extraordinary nature of the request. Although there is precedent for the recusal of federal judges, rarely are such motions granted so late in the process.

Howard Erichson, a Fordham law professor who is an expert on complex litigation and legal ethics, noted that the request came after a recent flurry of pretrial decisions against the defendants by Polster.

“If recent rulings had been going the defendants’ way, they wouldn’t be seeking to get rid of the judge, despite his remarks to the press,” Erichson said.

Lawyers for the retailers and drug distributors argued that Polster had gone to unusual lengths to wade into settlement talks himself, which they said showed a bias toward such a resolution and against the defendants’ position. Last week, Polster signed off on a novel negotiation structure that would bind more than 30,000 local governments nationwide that have not yet filed lawsuits.

The motion comes at a time when a group of attorneys general, led by Dave Yost of Ohio, has asked the 6th U.S. Circuit Court of Appeals to halt the bellwether trial, in which the plaintiffs are two Ohio counties, arguing that it usurps the power of the states.

Notably, no drug manufacturers joined in the request to disqualify Polster, although they have not opposed it. Several named in the trial, including Allergan, Endo Pharmaceuticals and Mallinckrodt, have already settled.

The defendants’ motion comes before a critical hearing on Monday in Cleveland before Polster. The defendants will argue that a central, contested legal theory in the case should be heard by a jury. The plaintiffs maintain that the judge alone should hear the theory, which argues the drug industry has created a “public nuisance” affecting the health and well-being of the counties’ citizens, which it must abate.

Peter Weinberger, a lead lawyer for the plaintiffs in the upcoming trial, said that the executive legal team representing all the cases before Polster remains “confident the judiciary will swiftly respond to yet another attempt by the opioid defendants to delay the trial.”

Erichson thinks the effort has only a slight chance of working, not least because the question first goes to Polster for a decision.

Given the likelihood that the effort will fail, Erichson said, the strategy behind the 11thhour gambit could be to push Polster to rule more favorably for defendants during the trial, by making him feel exposed to scrutiny.

But the move is very risky, he added, because it could irritate the judge.