CLEVELAND (Legal Newsline) - Lawyers representing thousands of government plaintiffs in opioid litigation opposed a request by pharmacy benefit managers to disqualify the special master overseeing their cases, saying an email the PBMs cite as evidence of bias was protected by judicial privilege and merely reflects the judge’s personal thoughts anyway.
The PBMs moved to disqualify David R. Cohen after he mistakenly hit “reply all” on an Aug. 28 email he later said was intended only for himself. In it, Cohen discussed allowing plaintiffs to amend their lawsuits to add mail-order pharmacies operated by PBMs to existing lawsuits. As special master, Cohen decides many procedural issues in the sprawling multidistrict litigation under the authority of U.S. District Judge Dan Aaron Polster in the U.S. District Court for the Northern District of Ohio.
In his email, Cohen said there was no need for briefing on the question of amending the lawsuits, “just allow it.” Adding the PBMs to existing lawsuits “will show how much the PBMs knew (and they knew a lot),” he wrote.
The PBMs complained that the e-mail showed Cohen had prejudged their case, since no evidence about what they knew or didn’t know has been presented so far. Once bit players in opioid litigation, PBMs still only represent about 3 percent of the lawsuits in multidistrict litigation and argue they don’t market or dispense opioids, although some own mail-order pharmacies as well.
Plaintiff lawyers, most of whom have extensive experience with asbestos lawsuits, have steadily expanded the universe of opioid defendants to include any company that was involved in the business, including consulting firm McKinsey & Co., PBMs and neighborhood pharmacies.
Cohen filed an affidavit refuting the PBMs’ claims, saying the email was intended to reflect notes to himself and he never intended to send it to the parties in the case. Plaintiff lawyers followed up with a brief opposing disqualification, arguing Cohen was allowed to do background research and form his own opinions about the case.
“Far from reflecting bias, this note reflects recognition that, while the PBMs `knew a lot’ (a point hardly open to debate, given the massive amounts of data to which they have access), what specifically they knew, and its significance here with respect to dispensing claims or otherwise, are open questions,” lawyers with Simmons Hanly wrote in the Sept. 27 filing. “Although judicial officers must, of course, decide issues on the basis of the evidence before them, they are not expected to come to their job as complete blank slates, nor would we want them to.”
The plaintiff lawyers also argued the email should be protected by judicial privilege, citing the U.S. Supreme Court’s January 19 statement about the leak of the Dobbs decision overturning the Roe v. Wade abortion decision.
Opioid defendants have repeatedly accused Judge Polster of bias against them, starting with his statement soon after being appointed judge in charge of the MDL that he favored settlement over trials. Since then, the defendants have filed mandamus appeals of the judge’s rulings to the Sixth Circuit Court of Appeals several times. The court rejected the judge’s proposed “negotiation class” structure intended to spur settlements in 2020 and more recently the appeals court asked the Ohio Supreme Court to decide the central question of whether Ohio’s public nuisance law allows for lawsuits over legal products.
Cohen referred to the history of defense appeals to the Sixth Circuit in his email, saying that the PBM cases should be amended and if the defendants object, “Let them mandamus you,” apparently referring to Judge Polster.
The special master went on to criticize the PBMs for opposing additional bellwether trials, which judges use in multidistrict litigation to test legal theories with juries and convince parties to settle. Cohen supported doubling the bellwether trials to four, writing that the “PBMs’ goal is to complicate and delay.”