CLEVELAND, Ohio — Attorneys representing several drug companies involved in thousands of federal lawsuits over the opioid crisis filed a motion in the early morning hours of Saturday requesting the disqualification of U.S. District Judge Dan Polster, raising questions about his impartiality.
In a 39-page brief filed with the motion, the attorneys cite Polster’s “unusual level of commitment” to a settlement that they believe has affected his decision-making in the landmark lawsuits.
Lawyers for cities and counties suing the drug companies characterized the motion as a desperate ploy to sidestep accountability.
(You can read the brief here or at the bottom of this story.)
The companies that filed the motion include mega-retailers Walmart, Walgreens, CVS and Rite Aid, as well as drug distributors AmerisourceBergen, McKesson and the Ohio-based Cardinal Health. No drugmakers signed on to the motion.
“Defendants do not bring this motion lightly,” the brief says. “Taken as a whole and viewed objectively, the record clearly demonstrates that recusal is necessary.”
That record, according to the attorneys, includes the judge’s statements from the bench, in negotiations, in media interviews and his “singular focus on … settlement discussions.”
The motion comes at a pivotal time in the more than 2,000 federal lawsuits being heard by Polster in Cleveland. A trial for lawsuits filed by Cuyahoga and Summit counties is set to begin next month.
The judge recently denied attempts by drug companies to dismiss the lawsuits, ruling a jury should decide whether they are culpable.
Three manufacturers – Mallinckrodt, Endo International and Allergan – have reached settlements with the counties. OxyContin maker Purdue Pharma also has tentatively agreed to a settlement potentially worth $12 billion to resolve thousands of suits filed in federal and state courts nationwide.
Polster on Wednesday certified a “negotiation class” to encourage mass settlements for the lawsuits, which accuse drug manufacturers of downplaying the addictive nature of prescription painkillers and distributors of not flagging suspicious orders. All the while, the companies saw large profits and a wave of addiction and death reached every pocket of the U.S., according to the suits.
The order gave the green light for tens of thousands of cities and counties to band together to negotiate with the defendant companies, which have denied legal wrongdoing.
Dozens of state attorneys general, who are mostly litigating their own lawsuits in state courts, have opposed the negotiation structure Polster approved. Ohio Attorney General Dave Yost asked the 6th U.S. Circuit Court of Appeals late last month to step in and halt the federal trial, arguing that he has the power to litigate his opioid lawsuits on behalf of all the state’s residents. The trial would impede his ability to do so, the attorney general says.
The high-profile litigation shined a spotlight on Polster’s preference for reaching settlements, something that has long been known by Cleveland’s legal community. The President Bill Clinton appointee who took the bench in 1998 was sought by other federal judges in the Carl B. Stokes U.S. Court House to resolve lawsuits on several major local issues. They include the fatal shooting of 12-year-old Tamir Rice by a Cleveland police officer in 2014 and the city’s plan to impose restrictions on a large swath of downtown during the 2016 Republican National Convention.
A panel appointed Polster to oversee the federal opioid lawsuits in December 2017. A month later, he told a packed courtroom and others listening on the phone that he envisioned a mass settlement to resolve all state and federal lawsuits so money could go toward abating problems associated with opioid addiction.
“I don’t think anyone in the country is interested in a whole lot of finger-pointing at this point, and I’m not either,” the judge said at the January 2018 hearing. “People aren’t interested in depositions, and discovery, and trials. People aren’t interested in figuring out the answer to interesting legal questions like preemption and learned intermediary, or unravelling complicated conspiracy theories.”
Saturday’s motion is packed with statements Polster made that the companies say illustrate his lack of impartiality, including what the judge said at the first hearing. The lawyers also cite the “negotiation class” as evidence of the judge’s mission to resolve the cases at any cost.
“The Court’s deep involvement in settlement discussions requires its disqualification from any bench trial of equitable remedies,” the brief says. “Together, these factors more than raise a reasonable question about the Court’s impartiality. In cases like these of such national significance and such magnitude for Plaintiffs and Defendants alike, any reasonable question about the Court’s impartiality cannot be tolerated.”
Attorneys Paul Hanly, Paul Farrell and Joe Rice, who serve on the plaintiffs’ executive committee, said in a statement that the motion “is simply a desperate move on the eve of trial by opioid companies that created, fueled and sustained the crisis following rulings by the court concluding that there is sufficient evidence to find that these companies created a public nuisance and conspired together to avoid regulation and sanctions.”
They said Polster is well-regarded as a federal judge.
Cleveland.com editor Kris Wernowsky contributed to this story.