Trials & Litigation

Opioid sellers say judge must recuse because he pushed settlement; 1 defendant files for bankruptcy

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Some opioid defendants contend that the federal judge overseeing multidistrict litigation should recuse himself partly because his zeal for settlements has created the appearance of bias.

Several opioid sellers and distributors filed a motion early Saturday seeking the recusal of U.S. District Judge Dan Polster of Cleveland, report the Washington Post (here and here), and Law360. The plaintiffs in the litigation accuse opioid makers of downplaying addiction risks and opioid distributors of failing to monitor suspicious orders.

A brief supporting the motion cites the push for a settlement, along with two other alleged reasons for recusal. The first consists of Polster’s statements demonstrating he has a personal objective to abate the opioid crisis. The second consists of alleged improper comments about the litigation to the media and in seminars and panel discussions.

The brief points to a January 2018 hearing in which Polster said, “My objective is to do something meaningful to abate this crisis and to do it in 2018.” He also said during the hearing that he wanted to do something meaningful to “dramatically reduce” the number of opioids prescribed.

The brief also points to statements that Polster made to the news media. In one statement, Polster indicated that he thinks that most people in Ohio have a family member, friend or relative of a friend who has been affected by the opioid crisis. Polster also said in a panel discussion that any settlement would have a financial component, as well as a behavioral change by the defendants, the brief says.

Polster also made clear that the court rather than jurors will determine how much money the defendants should pay for medical treatment and other addiction-related services, the brief says.

The brief also cites Polster’s certification of an unusual negotiation class representing the nations’ cities, towns and counties to try to achieve a global settlement in opioid litigation.

The recusal motion was filed by retailers that included Walgreens, CVS and Rite Aid, and by drug distributors AmerisourceBergen, McKesson and Cardinal Health.

Two law professor who spoke with the Washington Post said they didn’t think the recusal bid would succeed. One of them, Carl Tobias, a law professor at Richmond University, said judges overseeing multidistrict litigation are supposed to encourage settlements.

One of the defendants who did not join in the recusal motion, Purdue Pharma, a maker of OxyContin, filed for Chapter 11 bankruptcy Sunday night, report the New York Times, the Washington Post, the Associated Press and Law360. The bankruptcy is part of a tentative settlement in more than 2,600 lawsuits by local governments and 24 states.

In bankruptcy filings Monday, Purdue Pharma said it will seek to apply an automatic stay of civil litigation to nonsettling government entities and would seek to also protect from litigation the owners of Purdue Pharma, the Sackler family, according to Law360.

The Purdue Pharma settlement calls for Purdue Pharma to be restructured as a public benefit trust and for the Sackler family to pay $3 billion to the plaintiffs.

According to the Washington Post, the bankruptcy “will raise the stakes on legal sparring over how much of the personal fortunes of the billionaire Sackler family” will have to compensate the plaintiffs. States that rejected the settlement claim that the Sackler family improperly took cash out of the company to protect it from expected court judgments.

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