CINCINNATI (Legal Newsline) - Pharmacies have asked the Sixth Circuit Court of Appeals to remove the judge overseeing federal multidistrict opioid litigation, saying he has injected himself too far into the process by dictating which claims plaintiffs should file and appointing himself to decide the key issue of public nuisance in an upcoming bellwether trial.
CVS, Rite Aid, Walgreen, Walmart and Giant Eagle filed an emergency motion with the appeals court yesterday seeking to enforce an earlier order preventing U.S. District Judge Dan Aaron Polster from allowing Ohio counties suing the pharmacies to amend their claims months after a deadline for doing so had expired. Judge Polster responded to the order by immediately ordering plaintiffs to file new claims exactly like the ones the Sixth Circuit had barred.
The pharmacies called Judge Polster’s order “nothing short of punitive” and asked the appeals court to enforce its earlier mandamus ruling against the judge. Citing what they consider repeated examples of bias, starting with his first public hearing in the MDL where the judge announced his primary goal was overseeing a settlement, not conducting trials, the pharmacies also asked the appeals court to remove him from the MDL or at least from the upcoming bellwether trial.
The filing represents another long-shot attempt to derail or at least slow down Judge Polster’s efforts to cajole the opioid industry into a multibillion-dollar settlement of claims it caused the opioid crisis. The judge has told defendants he “didn’t want this litigating track” and “a trial will accomplish zero.” It’s the second time opioid defendants have sought to have Judge Polster step down or be removed from the litigation. That previous effort last September failed.
In their June 30 filing, the pharmacies say Judge Polster violated the clear instructions the Sixth Circuit handed down in April when the appeals court said the judge “was plainly incorrect as a matter of law” when he allowed two Ohio counties to add so-called dispensing claims to lawsuits against CVS and 11 other pharmacies more than 18 months after the deadline for such changes had passed. The rebuke came just two months after the Sixth Circuit trimmed Judge Polster’s order requiring the pharmacies to turn over decades of sensitive patient prescription records nationwide to plaintiff lawyers representing two Ohio counties in opioid litigation.
In this latest filing, the pharmacies accuse the judge of “stepping out of the role of judge into that of litigant” by instructing plaintiff lawyers to file public nuisance claims in his judicial district, so he could oversee the cases. Judge Polster previously ruled that he will decide public nuisance claims, instead of a jury. No party asked for the changes, the pharmacies say, in violation of the federal rules of civil procedure which leave the job of defining the issues to be decided to plaintiffs and defendants.
“In its zeal to find volunteer plaintiffs willing to try a case no party had actually filed, the district court ran roughshod over the Federal Rules, its own case management orders, and this Court’s writ of mandamus,” the defendants argue.