Defendants in the nation’s largest opioid litigation might be reconsidering their odds. If they were confident, they might not have asked for the removal of the federal judge tasked with overseeing thousands of consolidated lawsuits seeking to recover damages from drug makers and distributors for their role in perpetuating the nation’s ongoing opioid crisis.
That, however, is exactly what happened last month when household names like CVS and WalMart joined with AmerisourceBergen, Cardinal Health, and McKesson to try to force the recusal of U.S. District Judge Dan Polster from the case. Polster has been working with both sides in the matter since 2018, and the timing of the move did not go unnoticed by the plaintiffs.
“If these Defendants really thought recusal was necessary, they were required to raise the issue sooner – much sooner,” the plaintiffs’ lawyers wrote in a brief filed in response to the move.
Polster has made no secret of his desire to find a resolution to the matter and help the nation’s communities begin moving forward – a desire he has spoken about since the start of the litigation. “About 150 Americans are going to die today, just today, while we’re meeting,” he said in his opening remarks to lawyers representing both sides, “and in my humble opinion, everyone shares some of the responsibility, and no one has done enough to abate it…My objective is to do something meaningful to abate this crisis and to do it in 2018.”
The plaintiff’s brief goes on to note that this is the first time the defendants have raised these concerns and have, in fact, willingly participated in ongoing settlement negotiations “without objection” from day one.
The first trial in the MDL is set to start later this month and the stakes are high. Two Ohio counties are seeking $8 billion to replenish resources they say they’ve spent cleaning up the aftermath of the crisis that has ravaged their communities. Johnson & Johnson and four other opioid drug manufacturers have settled with the Ohio counties to avoid the upcoming trial.
It seems that the time for Judge Polster’s “abatement” of the crisis may indeed be nigh, and the drug companies – at least based on outward appearances – might be breaking a sweat.
