But nothing is simple in this unbelievably complicated case. The latest twist came early Saturday morning when some of the drug companies being sued filed legal papers asking Polster to step down.
They claim his zeal for a settlement, and references to the death toll from opioids and the role of drug companies in the crisis, shows he cannot be an unbiased jurist. The drug companies have broadly denied they’re responsible for the tremendous spike in addiction and fatal overdoses from prescription opioids that began about two decades ago.
In seeking to remove Polster, the defendants pointed to comments he made in early 2018, before any of the parties had begun producing evidence or marshaling their arguments. Polster said, for example, “150 Americans are going to die today, just today, while we’re meeting.”
He also argued that everyone “shares some of the responsibility” for the epidemic, and that he hoped to “do something meaningful to abate this crisis,” including reducing the number of opioids being manufactured and distributed, according to the companies.
“There can be no doubt that a reasonable person would question whether the court can fairly and impartially conduct this . . . litigation,” the defendants wrote.
Polster has not been giving interviews and has put a limited gag order on attorneys in the case. He’s a private person who does not relish being the center of attention, according to people who know him well. Saturday’s legal maneuver by the defendants may have only a modest chance of derailing the trial, but it has put Polster uncomfortably in the spotlight and is a reminder of how much is at stake in this trial, certainly tens of billions of dollars at the least — not to mention the broader consequences to public health and individuals with substance-use disorders.
Also at stake are the reputations of some of the largest and best-known drugmakers, distributors and retailers in the world. They face a shaken, angry public, as well as elected officials who want someone to be held accountable for the more than 200,000 overdose deaths from prescription narcotics over the past 20 years.
Those companies can feel the pressure of recent legal developments. The state of Oklahoma in recent weeks won a $572 million settlement from drugmaker Johnson and Johnson after that company chose to go to trial, rather than settle. Purdue Pharma settled with Oklahoma for $270 million, and its owners, the Sackler family, are hoping to close a multibillion-dollar agreement with the Cleveland plaintiffs that would end their ownership as Purdue goes into bankruptcy. Several other companies have also settled in advance of trial.
And Polster earlier this month denied motions by the companies to dismiss the case.
So the trial is on — for now. Many things could still happen before then, including additional settlements. Last week, Polster certified a type of class-action negotiation arrangement that would let any city, county or other municipal entity participate in a settlement, in addition to the more than 2,000 that have already filed suit.
“Polster has done everything conceivable to push the parties toward settlement,” said Paul Hanly, a co-lead for the plaintiffs, who made his comments in an interview before Saturday’s filing. “One of the strongest vehicles for getting parties to settle is picking a trial date and sticking by it, because that is what gets defendant companies concerned about their share price, about what the shareholders are going to say, about their liability.”
A “global” settlement, however, would be hard to pull off in just a few weeks, making an epic courtroom confrontation seem almost inevitable. Two counties, Cuyahoga and Summit, from Polster’s home turf of northeast Ohio, are scheduled to go first, in a test of how the others and the companies may fare before a jury.
In another recent development that reveals the case’s complexity, Ohio Attorney General Dave Yost (R) has asked a federal appeals court to halt Polster’s trial. Yost thinks the state of Ohio, not the counties, should control the litigation. He is supported by more than a dozen attorneys general from other states and the District of Columbia, as well as by the U.S. Chamber of Commerce.
The effort by Yost is likely another long shot, and the Cleveland plaintiffs — the cities and counties — are preparing to argue why they should continue to lead the litigation if the appeals court demands a response.
Polster has long had a reputation as a judge who prefers to see lawyers settle a case rather than go to trial. Settling can be a mixed blessing: It can speed up a long, often unpredictable process and be less costly for everyone involved. But legal experts say that some contentious claims are best tested in a trial, one that can include witnesses testifying in open court and in the presence of a jury, as would be the case in Polster’s courtroom.
Ronald Kopp, an Akron attorney and former president of the Ohio State Bar Association, said Polster “is obviously working beyond this one trial. There are times when a trial is part of a larger strategy. My thought is that trying this case in five weeks will assist the larger effort to settle nationwide.”
Polster, 67, is a Cleveland native, living not far from where he grew up and went to high school, in the community of Shaker Heights. His father owned a plumbing supply business and his mother, who is still living, is an artist. He’s a dedicated fan of the Indians (he shares season tickets with friends) and Browns. He’s a member of two synagogues, according to the Cleveland Jewish News. He has been married for more than four decades to another lawyer, Deborah Coleman, whom he met at Harvard Law School after graduating from Harvard in 1972.
Polster served in the antitrust division of the Justice Department and then as assistant U.S. attorney in the Northern District of Ohio before being nominated by President Clinton in 1997 to the federal bench. The Senate confirmed him the following year.
Attorneys who have been in Polster’s courtroom use the same words to describe him: serious, sober, efficient, civic-minded, hard-working. His assignment by a panel of federal judges to a case that has been described as the most complex civil litigation in U.S. history is testimony to his reputation, said Alexandra Lahav, a professor at the University of Connecticut School of Law who has followed the case closely.
“They really select judges who run a tight ship and are very competent for multidistrict litigation. The fact that he got this case shows that he’s highly respected and he’s a very efficient judge,” she said.
He’s also a man with personal interests in public health. He’s the chair of a philanthropic organization, the Mt. Sinai Health Care Foundation.
In court and in public appearances, Polster has repeatedly lamented the drug crisis of the past two decades. He has spoken of the death toll and the need to help communities pay for addiction treatment, medical care and emergency services.
“He believes in justice and he is genuinely bothered by the opioid crisis,” said Donald Scherzer, a Cleveland lawyer who is a longtime friend of Polster’s, speaking to a reporter before Saturday’s filing. “He’s concerned about people dying. Kids dying.”
Polster has made clear that he would prefer that other branches of government do more to deal with the opioid epidemic.
“I said at the very outset of this [case], in January of 2018, that developing solutions to combat a social crisis such as the opioid epidemic should not be the task of our judicial branch,” he said in a hearing June 25. “It’s the job of the executive and legislative branches, but like it or not we have these cases. And I’ve been given the task of managing them in a way that is fair both to the plaintiffs and to the defendants, and in a way that doesn’t cause our state and federal judiciaries to crash.”