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Judge in opioid litigation won’t remove himself from case

The Associated Press//September 26, 2019//

Judge in opioid litigation won’t remove himself from case

The Associated Press//September 26, 2019//

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The federal judge in Cleveland overseeing national opioid litigation denied the requests Thursday of several drug companies that he remove himself from the case.

U.S. District Court Judge Dan Polster said in his order that he has done nothing over the past two years to favor cities and counties seeking money from the pharmaceutical industry to cover their costs of fighting the deadly crisis.

Polster said he has merely acknowledged the massive toll of the opioid crisis and the responsibility, as opposed to the legal liability, of many parties in the epidemic.

“Publicly acknowledging this human toll does not suggest I am biased; it shows that I am human,” he wrote.

Lawyers for drug distributors and pharmacies that sought Polster’s recusal from the case argued in a filing this month that Polster’s “unusual level of commitment” to a settlement in the multidistrict lawsuit that’s draw intense media attention had tainted his ability to be a neutral decision-maker.

Polster said that he has “simultaneously and vigorously” pursued both the settlement and courtroom tracks.

“Acknowledging the immense scope of the opioid crisis, and calling on all entities who have the power to ameliorate it to join me in doing so without delay, does not reflect any bias or prejudice toward any party to the litigation; and no reasonable observer would so conclude,” he wrote.

Polster’s decision adds clarity to the shape of a trial, scheduled to begin Oct. 21, that will be the first time a federal court will consider a case from government entities against the drug industry over the toll of opioids. There are more than 2,600 similar claims filed by state, local and tribal governments, representatives of babies born in opioid withdrawal, unions and hospitals.

After a series of settlements — including a tentative one between OxyContin maker Purdue Pharma and governments across the country — the number of companies still listed as defendants has been whittled down. It now includes drugmakers Johnson & Johnson and its subsidiaries; Activas and other related companies owned by Teva; distributors AmerisourceBergen, Cardinal Health, Henry Schein and McKesson; and the Walgreens pharmacy chain.

Polster has also recently ruled that a jury would decide whether the companies created a public nuisance by promoting and selling opioids but that he would decide the remedies, if any are needed. There had been a request to have a jury consider both issues.

The parties in the lawsuit have declared which exhibits they expect to present and witnesses they might call — lists that include hundreds of names.

Some issues remain to be determined. Defendants this week asked Polster to give them more time to present their cases and for the overall trial to be allowed to go longer than the seven weeks now planned.

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