Some of the drug companies facing more than 2,500 lawsuits from around the country asked Polster this month to disqualify himself from the cases, questioning his impartiality because he has repeatedly urged the parties to settle so that money for addiction treatment and other aid could quickly go to communities.
The lawsuits, filed in federal courts around the country, have been consolidated in Polster’s Ohio court. A “bellwether” trial pitting two Ohio counties — Summit and Cuyahoga — against several drug companies is scheduled to begin Oct. 21. Polster chose them as a test of how other lawsuits might fare.
“Acknowledging the immense scope of the opioid crisis, and calling on all entities who have the power to ameliorate it to join me in doing so without delay, does not reflect any bias or prejudice toward any party to the litigation; and no reasonable observer would so conclude,” Polster added.
The judge noted he has pursued two separate tracks since he was placed in charge of the “multidistrict litigation,” or MDL, which has been described as the most complex civil lawsuit in U.S. history. The plaintiffs in the first trial are seeking billions of dollars from seven drug manufacturers and distributors for the deaths and addiction they allege the companies caused. The companies, which include Johnson & Johnson, McKesson and Walgreens, have denied the accusations.
Neither side can “credibly complain of my public observations that any settlement will unquestionably require the defendants to pay money to the plaintiffs,” Polster wrote. “This is simply a fact of litigation, not an expression of bias or prejudice or prejudgment against any defendant.”
More than 200,000 people have died of overdoses from prescription narcotics since 1999, according to government statistics.
Polster cited what he called the successes of 20 months of settlement efforts, including multimillion-dollar agreements between three drug manufacturers — Endo, Allergan and Mallinckrodt — and the two Ohio counties, which removed those companies from the upcoming trial.
He also noted the court’s role in helping fashion a proposed settlement between Purdue Pharma and all 2,500 plaintiffs, as well as nearly every state, which have sued Purdue in their own courts. Purdue, the OxyContin maker widely blamed for fueling the drug epidemic, has declared bankruptcy. It has valued its settlement at $10 billion to $12 billion, including at least $3 billion from its owners, the Sackler family.
A spokeswoman for the attorneys representing the plaintiffs said they “are gratified the court has powerfully rejected this last-ditch effort to derail the upcoming trial, which cast unfair and undeserved aspersions on the Court.”
The statement also called on opioid manufacturers and distributors to “quickly accept accountability for creating a public nuisance and conspiring to overwhelm America’s cities, towns and counties with highly addictive opioids.”
A spokeswoman for McKesson, the nation’s largest drug distributor and one of the defendants in the upcoming trial, declined to comment.
The companies that asked Polster to step down a little more than a month before trial said they were prompted by two events. The first was his decision to allow any city, county or other municipality nationwide to take part in a settlement, even if they had not brought suit. The second was Polster’s ruling that he — not a jury — would decide the size of the monetary award if drug companies were found liable for creating a “public nuisance” that harmed the health of residents in Summit and Cuyahoga counties.
Polster rebutted both assertions on legal grounds and said neither decision created the appearance of bias on his part. He also noted the impracticality of another judge taking over the sprawling lawsuit just weeks before the first trial begins.
“I freely admit I have been very active from the outset of this MDL in encouraging all sides to consider settlement,” he wrote. “It goes without saying that if even a small fraction of the 2,000 cases in the MDL requires a months-long trial, the federal judiciary will be overwhelmed and most of the defendants would be forced into bankruptcy, simply because of litigation costs.
“Ordinarily, the resolution of a social epidemic should be the responsibility of our other two branches of government, but these are not ordinary times,” he said.