Landmark Opioid Case Nears as Drug Retailers Make Last-Ditch Effort to Avoid Trial
It’s getting hot in Cleveland as drug retailers attempt to disqualify a judge presiding over a major opioid trial set to begin in a matter of days.
Eight drug retailers, including CVS, Walgreens, Walmart and RiteAid made a bid in early October to disqualify the judge who will oversee a landmark October 21 trial that will determine the drug companies’ role in manufacturing the opioid crisis.
The companies alleged that U.S. District Judge Dan Polster created an appearance of bias against the drug industry. Polster oversees the nationwide opioid litigation, about 2,300 of the 2,600 lawsuits filed to date; the retailers said he was biased based on his previous rulings, efforts to encourage settlements and public statements such as it is his “personal mission” to address the opioid crisis.
However, a federal appeals court disagreed with the retailers, letting Polster stand and clearing the way for the Oct. 21 trial. The appeals court cautioned the judge about making comments to the press but said his actions thus far did not constitute a recusal.
Polster is a graduate of Harvard Law School, nominated in 1998 by President Bill Clinton for the federal bench. The judge defended his actions by saying, “Publicly acknowledging this human toll does not suggest I am biased; it shows that I am human.” Yet, the retailers’ defense attorneys stated that the judge has been too involved and has made too many comments, losing sight of his judicial responsibility for neutrality and discretion.
The trial is set to determine whether the drug industry is responsible for the opioid addiction crisis, which has claimed more than 700,000 lives during the 18 years between 1999 and 2017, according to data from the U.S. Centers for Disease Control and Prevention.
There has been tension between state and local governments regarding control over the opioid lawsuits. Ohio Attorney General Dave Yost tried to delay the trial as well, saying that only states and not counties could control the lawsuits and direct financial recoveries.
The Sixth Circuit Court of Appeals did not agree with Yost, stating that the state has known for months that the counties were set for trial. Yost says he may appeal to the U.S. Supreme Court.
First Opioid Trial in Federal Court
The Oct. 21 trial, set to begin in Cleveland, marks the first time an opioid case will be heard in federal court. There are only two plaintiffs in the trial, two counties in Ohio, Cuyahoga and Summit. Defendants include the eight retailers as well as drugmaker Teva Pharmaceutical Industries Ltd.
Johnson & Johnson has already settled with the two Ohio counties ahead of the Oct. 21 trial for a $20 million settlement that allows the U.S. health care giant to avoid a very public federal trial. J&J marketed the opioids Nucynta and Duragesic and said the settlement does not mean they are making an admission of liability.
The settlement marked the fourth pharmaceutical company to settle claims ahead of the Oct. 21 trial. More than 2,600 lawsuits have been filed nationwide by state and local governments, and all eyes are on the October trial, which will serve as a litmus test for the remaining lawsuits.