Trials & Litigation

6th Circuit refuses to toss special master for 'mild criticism' in his mistaken 'reply all' email

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The 6th U.S. Circuit Court of Appeals at Cincinnati said an email sent by a special master didn’t show “deep-seated antagonism” against the parties, including the two pharmacy benefit managers seeking to disqualify him. Image from Shutterstock.

A federal appeals court has rejected a bid to toss a special master from opioid litigation because of a mistaken “reply all” email that included his private notes.

The 6th U.S. Circuit Court of Appeals at Cincinnati said the email sent by special master David R. Cohen of Cleveland didn’t show “deep-seated antagonism” against the parties, including the two pharmacy benefit managers seeking to disqualify him, Law360 reports.

Cohen’s email “expressed mild criticism” of the approach taken by the pharmacy benefit managers, but his comments didn’t display bias or partiality, the appeals court said in a Nov. 14 order.

Cohen had written notes to himself after reviewing a status report with recommendations for bellwether trials. He intended to email the report with the notes to himself but instead hit “reply all,” sending the email to lawyers in the litigation. Among those receiving the notes were lawyers for the pharmacy benefit managers OptumRx, part of United HealthCare Services Inc., and Express Scripts Inc., owned by Cigna.

The plaintiffs suing the pharmacy benefit managers wanted four bellwether trials and wanted to amend their complaints in those cases. The pharmacy benefit managers said there was already an agreement for two bellwether trials, and they may have to add parties depending on the claims that the plaintiffs wanted to pursue.

Cohen’s notes said he should allow amended complaints without briefing, and he thinks that there should be four, rather than two, bellwether trials. With two trials, it’s too easy for the defendants to “buy off” two plaintiffs, “avoiding any global resolution,” Cohen wrote.

Noting that the pharmacy benefit managers were seeking to add parties, Cohen wrote that their goal “is to complicate and delay.”

“I say let [the plaintiffs] add claims against [the pharmacy benefit managers] as mail-order pharmacies,” Cohen wrote.

He cited two reasons. The first is that the plaintiffs are “the master of their own complaint.” The second is that claims against pharmacy benefit managers as mail-order pharmacies will show “how much [the pharmacy benefit managers] knew (and they knew a lot).”

Cohen sent an email “within half an hour” explaining that he had mistakenly sent the email, and the lawyers should “discard and disregard” it. OptumRx and Express Scripts alleged that the email raised questions about Cohen’s partiality, and they sought to disqualify him.

U.S. District Judge Dan Polster of the Northern District of Ohio refused to kick Cohen off the litigation, and the 6th Circuit affirmed, finding no abuse of discretion.

While Cohen remarked on a goal to complicate and delay, he accepted that it was an unavoidable consequence of wide-ranging multidistrict litigation, the 6th Circuit said. His statement about the pharmacy benefit managers knowing a lot is supported by the record, the appeals court added. In any event, the 6th Circuit said, “knowledge does not equate to liability.”

Cohen’s statement about more bellwether trials “merely acknowledges the district court’s oft-stated preference to maintain litigation and settlement tracks to resolve the case more efficiently,” the 6th Circuit said.

The plaintiffs had maintained that Cohen’s remarks couldn’t be a basis for his ouster because they were protected by the judicial deliberative privilege. The 6th Circuit said it didn’t have to reach that issue because it found no bias or partiality.

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