Drug Companies Want Federal Judge Removed From Opioid Cases 

By Kelly Burch 09/19/19

Big Pharma lawyers argue that their clients will not get a fair trial with Judge Dan Polster because of his desire for a settlement.

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Drug companies and retailers that are being sued by local governments across the nation are requesting that the judge overseeing the opioid suits in federal court step down, saying that he is too focused on reaching a settlement. 

Lawyers for the defendants—which include Cardinal Health, Walmart and many others—filed a motion on Saturday saying that Judge Dan Polster is not impartial in the case because he has said he wants a settlement, The Guardian reported

Turning A Blind Eye

Polster’s “unusual level of commitment” to reaching a settlement agreement has caused him to turn “a blind eye to the law,” the lawyers said in the motion. 

They explained, “Defendants do not bring this motion lightly. Taken as a whole and viewed objectively, the record clearly demonstrates that recusal is necessary.”

Polster has indeed been outspoken about his desire to see a settlement in the federal cases, which combined more than 2,000 lawsuits.  

Hopeful For Change

Last year, Polster discussed his hopes that the trials would result in meaningful change. The defendants latched onto that comment in their motion.

They quoted Polster as saying, “My objective is to do something meaningful to abate this crisis,” including “dramatically reducing the number of opioids that are being disseminated, manufactured and distributed… and [assuring] that we get some amount of money to the government agencies for treatment.”

Polster has acknowledged that the trials that he is presiding over are a unique situation, and something that hasn’t been seen before in the judiciary. 

“The judicial branch typically doesn’t fix social problems, which is why I’m somewhat uncomfortable doing this, but it seems the most human thing to do,” he said in 2018. 

The lawyers argue that their clients will not get a fair trial with Polster at the bench.

“The court’s deep involvement in settlement discussions requires its disqualification from any bench trial of equitable remedies. Together, these factors more than raise a reasonable question about the court’s impartiality,” they wrote. 

The first bellwether trial in the federal opioid litigation is scheduled to start next month. However, this motion is likely to delay that beginning, said law professor Carl Tobias.

“Polster is likely to deny the motion, which will then be appealed, delaying the start of the trial,” he said. 

Tobias pointed out that the whole point of presiding over all of the lawsuits in one court is to facilitate settlements. 

“The defendants are saying Polster pre-judged the outcome through his public statements and in all he’s done,” Tobias said. “But trying to move it toward settlement is what Congress intended in this kind of situation.”

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Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.

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