CLEVELAND (Legal Newsline) - The judge overseeing thousands of municipal lawsuits against the opioid industry criticized pharmacy benefit managers who sought to disqualify his special master, saying their bias claims were unreasonable and based upon a privileged email they should have destroyed instead of citing it in a public court filing.
The PBMs moved to disqualify Special Master David Cohen after he mistakenly hit “reply all” on an Aug. 28 email he later said was intended only for himself. In it, Cohen appeared to disparage the defendants, saying they “knew a lot” about opioid abuse before any evidence had been presented and dismissing the idea of holding only two bellwether trials because they would “buy off” the plaintiffs with settlements.
In a blistering response, U.S. District Judge Dan Aaron Polster said “no reasonable observer” would suspect Cohen of bias and the defendants violated procedural rules by refusing to disregard his email after he told them it had been sent in error.
“If judges were subject to accusations of bias and potential disqualification based solely on private, skeptical thoughts about a party’s position, there could be no judges,” the judge wrote in an order rejecting Cohen’s disqualification.
As special master, Cohen oversees pretrial procedures including the collection of evidence and preparation for bellwether trials designed to test the strengths and weaknesses of the plaintiffs’ cases. The PBMs argue they are being dragged into opioid litigation even though they served as middlemen between insurance companies and pharmacies and didn’t handle the drugs themselves.
Plaintiff lawyers seek to connect them to the opioid crisis through online pharmacies that some of the PBMs ran as independent businesses.
In his email, Cohen wrote adding the PBMs to the litigation “will show how much the PBMs knew (and they knew a lot).” Cohen said in a subsequent affidavit he was referring to the unquestioned wealth of data PBMs have on opioid prescribing patterns.
Opioid defendants have consistently accused Judge Polster himself of bias, ever since he took over as MDL judge and announced he wasn’t interested in trials but in driving the companies toward settlement.
In his order dismissing the PBM's request, the judge said they mischaracterized “they knew a lot” and “virtually every other word in the Special Master’s email.” In a footnote, the judge wrote: “Obviously, if the Special Master knew his notes would become the subject of public scrutiny, he might have chosen a more diplomatic phrase than `to buy off,’ but it is not this Court’s role (nor that of the PBMs) to police the manner in which the Special Master makes notes for himself.” He ordered the defendants to “discard and disregard” the email.
Judge Polster said there have been $55 billion in global settlements so far. Private lawyers, representing government plaintiffs under contingency fee contracts, stand to earn well more than $6 billion in fees so far.