CLEVELAND (Legal Newsline) - The federal judge who has presided over more than $26 billion in opioid settlements and once threatened companies with bankruptcy if they tried to fight the claims against them in court attacked lawyers for a pharmacy benefit manager for suggesting he is trying to coerce a new class of defendants into settling.
In a peppery response to OptumRx’s complaint he using the threat of more trials to “exert pressure toward settlement,” U.S. District Judge Dan Aaron Polster said the claim was “simplistic and insulting.”
OptumRx, a unit of UnitedHealth Group, last week asked Judge Polster to vacate an April 6 order requiring it and other pharmacy benefit managers to turn over documents and data to the plaintiffs’ executive committee in charge of litigation against opioid manufacturers and distributors. OptumRx complained that PBMs, which manage benefits for insurance plans, hadn’t been served with any discovery requests before Judge Polster ordered them to comply with a broad demand for records or risk being required to defend themselves in bellwether trials to determine liability.
OptumRx also complained that the Cicala law firm, which has filed more than 60 lawsuits against it, submitted an ex parte report to David Cohen, the special master managing opioid litigation, urging the court to order bellwether trials for the PBM industry.
It was a plaintiff victory in a bellwether trial in Ohio against Walgreens, Walmart and CVS last year that drove the pharmacy chains to settle opioid litigation by cities and states for billions of dollars. Judge Polster’s assigned himself the task of calculating damages and ordered the three to pay $651 million to two Ohio counties, indicating he thought nationwide damages against pharmacies alone could be more than $100 billion.
OptumRx said it only learned about Cicala’s Dec. 7 letter to the special master when it was “perhaps unwittingly” attached to a Feb. 17 status report. When it became clear the PBM industry would be the next to face opioid claims, OptumRx said it agreed to mediation. Judge Polster then upped the pressure on April 6 by ordering OptumRx to turn over claims and rebate data from 2010 to 2021 from 12 states, including states where there were no federal lawsuits pending against the company.
Judge Polster “also made comments to the effect that there are only two options for PBM litigation: settlement or trials,” OptumRX said in its filing.
In his April 24 order rejecting OptumRx’s motion, the judge said he only stepped in after the two sides failed to agree on discovery procedures for mediation. He also said OptumRx “brazenly suggests” he won’t fairly consider any of its pretrial motions to dispose of the claims against it.
“OptumRx and its counsel know that every defendant in every case this court has handled directly or supervised has had unfettered rein to file whatever dispositive motion it desired,” he wrote. “For OptumRx to infer that, because the court used the phrase `settle or trials,’ instead of `settlement or litigation,’ the court will not consider a dispositive motion and will not treat any PBM defendant fairly, is simplistic and insulting.”
Opioid defendants have repeatedly complained that Judge Polster has taken a one-sided approach to litigation from his first hearing as judge assigned to the MDL, where he said he wanted to “do something meaningful to abate this crisis and do it in 2018.” Two years ago, he threatened pharmacy chains they risked bankruptcy if they tried to fight the claims against them.
“I don't want to do this,” Judge Polster said at a March 2021 hearing, which was ostensibly about setting bellwether cases for trial around the country. ”I don't want to do any of these other trials, but again, the pharmacists aren't giving me a lot of choice.”