By Jonathan Stempel
(Reuters) – The U.S. judge overseeing nationwide opioid litigation on Thursday rejected a request by several big pharmacy chains and drug distributors to disqualify himself because he appeared to be biased against them and pressed too hard for a costly settlement.
Calling the opioid crisis “one of the greatest tragedies of our time,” U.S. District Judge Dan Polster in Cleveland admitted he had been “very active” in encouraging a settlement, but said he was “confident that no reasonable person can legitimately question my impartiality.”
Companies that sought Polster’s recusal included retailers CVS Health Corp, Rite Aid Corp, Walgreens Boots Alliance Inc and Walmart Inc, and distributors AmerisourceBergen Corp, Cardinal Health Inc, Henry Schein Inc and McKesson Corp.
Their lawyers did not immediately respond to requests for comment.
Polster oversees more than 2,000 lawsuits by state and local municipalities seeking to recoup the costs of fighting the opioid abuse crisis, including a bellwether trial by Ohio’s Cuyahoga and Summit counties scheduled for Oct. 21.
He said combating the epidemic should be the job of the government’s executive and legislative branches, but that “these are not ordinary times,” and that not settling could overwhelm the courts and drive “most of the defendants” into bankruptcy.
“The moving defendants complain that I have had a ‘personal mission’ from the start of the case,” Polster wrote. “That is true, but it does not suggest any bias or partiality.”
The request to disqualify Polster followed several rulings by him in the counties’ favor, including that they could try to show that various defendants created a public nuisance.
Legal experts said Polster’s decision was not a surprise.
“After nearly two years of litigation, and on the eve of trial, the defendants decided they didn’t want the judge because they didn’t get favorable rulings,” said Howard Erichson, a Fordham University law professor specializing in mass litigation and legal ethics. “That doesn’t work.”
Lawyers representing the municipalities said in a joint statement: “We are gratified the court has powerfully rejected this last-ditch effort to derail the upcoming trial, which cast unfair and undeserved aspersions on the court.”
The decision also came as Ohio and several other states ask the federal appeals court in Cincinnati to halt the trial, saying it undermines their right to litigate on their own.
Opioid addiction claimed roughly 400,000 lives in the United States form 1999 to 2017, according to the U.S. Centers for Disease Control and Prevention.
‘STANDARD OPERATING PROCEDURE’
The companies had argued that Polster began tipping his hand as early as January 2018, soon after the litigation began, that they would have to foot the bill for the epidemic.
They have also warned of the costs, saying the Ohio plaintiffs were seeking $8 billion to cover the fallout.
Polster, however, said his “standard operating procedure” was to encourage settlements, and he meant his public comments to show that the judiciary could address the epidemic, whether through settlements or fairly-fought litigation.
“The burden to sustain a motion to disqualify a judge is exceedingly high,” he added, “and the moving defendants have not met it.”
Elizabeth Burch, a University of Georgia law professor, said: “There may be good questions about whether settlements should be standard operating procedure, but many judges take that approach. You can’t litigate that by seeking a recusal.”
Purdue Pharma LP, the maker of Oxycontin and one of the main defendants, filed for bankruptcy protection on Sept. 15 after agreeing to settle claims in the litigation and by 24 U.S. states.
(Reporting by Jonathan Stempel in New York; Editing by Nick Zieminski and Bill Berkrot)