Opioid Defendants Seek to Disqualify Judge Overseeing 2,300 Cases


“If recent rulings had been going the defendants’ way, they wouldn’t be seeking to get rid of the judge, despite his remarks to the press,” Mr. Erichson said.

But people with knowledge of the defendants’ strategies took a different view. “I think this is serious and will be taken very seriously. It does not read like a frivolous Hail Mary and they would not do this so close to trial if they thought it was just a throw away,” one person said.

Lawyers for the retailers and drug distributors argued that Judge Polster had gone to unusual lengths to wade into settlement talks himself, which they said showed a bias toward such a resolution and against the defendants’ position. Most recently this week, Judge Polster signed off on a novel negotiation structure that would bind more than 30,000 local governments nationwide that have not yet filed lawsuits.

The motion comes at a time when a group of attorneys general, led by Dave Yost of Ohio, has asked the United States Court of Appeals for the Sixth Circuit to halt the bellwether trial, in which the plaintiffs are two Ohio counties, arguing that it usurps the power of the states.

Notably, no drug manufacturers joined in the request to disqualify Judge Polster, although they have not opposed it. Several named in the trial, including Allergan, Endo Pharmaceuticals and Mallinckrodt, have already settled.

The defendants’ motion comes before a critical hearing on Monday in Cleveland before Judge Polster. The defendants will argue that a central, contested legal theory in the case should be heard by a jury. The plaintiffs maintain that the “public nuisance” theory should be heard by the judge alone. According to the theory, the drug industry has created a “public nuisance,” affecting the health and well-being of the counties’ citizens, which it must abate.

Peter H. Weinberger, a lead plaintiffs’ lawyer in the upcoming trial, said that the executive legal team representing all the cases before Judge Polster remains “confident the judiciary will swiftly respond to yet another attempt by the opioid defendants to delay the trial.”

Source : Nytimes