Pharmacies, Distributors Say Opioid Case Judge Biased, Seek Removal

By | September 16, 2019

AmerisourceBergen Corp., Cardinal Health Inc., CVS Health Corp. units and other prescription drug distributors and pharmacies moved to bounce Cleveland federal judge Dan Polster from the massive opioid liability case he’s overseeing, claiming he’s likely biased against them.

The Saturday court filing comes just days after Polster approved creation of a plaintiffs’ negotiating group to hammer out a deal between pharmaceutical industry players and some of the more than 2,000 cities and counties suing them for allegedly fostering the American opioid abuse crisis.

The first trial in the Cleveland mass tort litigation is set for next month. If successful, the request could delay the long-awaited start to that trial.

Citing comments made by Polster at the outset of the case in January 2018, the distributors and retailers contend the judge tipped his hand then about who must pay to reduce the problem and has maintained that stance in court, and in public statements, ever since.

They also criticized him for stating early on, “My objective is to do something meaningful to abate this crisis and to do it in 2018.”

$8 Billion Demand

“Defendants do not bring this motion lightly,” the companies said, adding that with those suing demanding $8 billion for abatement of the crisis, Polster has decided that he, not a jury, has discretion to decide how much the defendants must pay.

Judicial ethics rules generally require judges to not only maintain impartiality, but to also avoid even the appearance of being partial. It’s unclear what will happen if Polster denies the request, but it would certainly set a ground for appeal, should the drug companies lose that first trial.

Attorneys Paul Hanly, Paul Farrell and Joe Rice, who are leading the plaintiffs’ executive committee, criticized the step in a statement, calling it “a desperate move on the eve of trial” by companies that helped fuel the abuse epidemic. They noted the motion was filed only after Polster had denied a defense motion for judgment on the municipalities’ claims that opioid makers had created a public nuisance.

Among those companies joining in the motion to remove Polster are McKesson Corp., Henry Schein Inc., Walmart Inc., and units of Walgreen Boots Alliance Inc.

No drug-makers participated in the Polster recusal motion.

The case is In Re National Prescription Opioid Litigation, 17-md-2804, U.S. District Court, Northern District of Ohio (Cleveland).

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