CINCINNATI (Legal Newsline) - The Sixth Circuit Court of Appeals once again rebuked U.S. District Judge Dan Aaron Polster over his management of multidistrict opioid litigation, saying his court “clearly abused its discretion” by refusing to allow lawsuits by municipalities in Texas and New Mexico to be remanded to state court.
The appeals court granted mandamus petitions by three Texas counties including Houston’s Harris County as well as the New Mexico cities of Albuquerque and Santa Fe, saying Judge Polster had no excuse for holding the cases in federal court.
The brushback by the Sixth Circuit is the latest in a series of rebukes to Judge Polster, who announced to plaintiffs and defendants in early 2018 that he wanted to oversee a multibillion-dollar settlement, not trials over whether the claims had merit. Since then, the Sixth Circuit has rejected his proposed “negotiation class” as not allowed under the Federal Rules of Civil Procedure, an order that would have handed tens of millions of confidential prescription records to plaintiff lawyers, and an order allowing plaintiffs to add news claims to the lawsuits months after a deadline had expired.
The Texas counties and New Mexico cities had asked Judge Polster to remand their cases to state court because they made only claims based in state law but Polster refused, without explanation. The appeals court, in a March 11 order, called this an abuse of discretion unjustified by the judge’s claims he needed to conserve judicial resources.
In a letter to the appeals court dated Feb. 28, the judge made clear his priority in managing the opioid litigation was driving settlements, not trying cases. He also said he needed to protect the private plaintiff lawyers that state and local officials hired on a contingency-fee basis to litigate these cases, saying they have advanced “all litigating costs and expert fees – hundreds of millions of dollars so far.”
“Unless I took aggressive measures to manage and control this litigation, many of these firms could be jeopardized,” the judge wrote.
Plaintiff law firms are in many cases funded by third parties, including hedge funds, that take on the risk of failure in exchange for a substantial share of any legal fees. Under a $26 billion settlement with the three main drug distributors plus Johnson & Johnson, those financiers stand to be amply rewarded; some $2 billion of the settlement money will flow to plaintiff law firms.
In his letter, the judge criticized the municipal plaintiffs seeking remand, saying they will be receiving $100-$150 million from the settlement. He also offered insight into how he sees his role in the litigation and the broader opioid crisis.
“The responsibility to address the long-standing opioid epidemic should rest upon the executive and legislative branches, but they have failed to do their job,” the judge wrote. “The judicial branch is not equipped to do so, but the nation’s states, cities and counties have nevertheless turned to the courts.”
Judge Polster facilitated the litigation by rejecting defense motions to dismiss lawsuits as contrary to state public nuisance law, which in nearly every state appeared to preclude lawsuits over the marketing of legal products. Since then, the Oklahoma Supreme Court has reversed that state’s $465 million verdict against Johnson & Johnson, saying it was unsupported by Oklahoma nuisance law. And a California judge eviscerated plaintiff arguments opioid manufacturers caused the opioid epidemic in Los Angeles and Oakland, saying the fact opioid prescriptions increased didn’t prove the companies caused a public nuisance.
Publix supermarkets seized upon these developments to ask Judge Polster to certify the questions in lawsuits against it to the Georgia Supreme Court, to determine whether Georgia law, like Oklahoma’s is hostile to public nuisance lawsuits over legal products. Citing a “national trend of decisions finding public nuisance laws inappropriate vehicles” for suing drug companies, Publix said the plaintiffs can’t point to a case where Georgia’s nuisance law “has been applied to remedy a purported public health crisis.”
Despite this, Judge Polster rejected the Publix motion, saying he interpreted Georgia law to allow the lawsuits to proceed.