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Opioid Trial Judge Will Not Recuse Himself

U.S. District Judge Dan Polster will not recuse himself from hearing the broad, national opioid litigation set to go to trial in Cleveland next month.

Several drug companies involved in the suits – including Cardinal Health, McKesson and AmerisourceBergen – filed a motion Sept. 14 objecting to the judge’s push for settlements and requesting he remove himself from the case.

In a Thursday order denying that request, Polster said he has “simultaneously and vigorously” pursued both settlement and courtroom options. Polster said he has done nothing over the past two years to favor cities and counties seeking money from the pharmaceutical industry to cover the cost of fighting the deadly crisis. He also called the opioid epidemic “historic” and the burden on governments trying to deal with it “extreme.”

“Publicly acknowledging this human toll does not suggest I am biased; it shows that I am human,” Polster wrote in the 14-page order.

Lawyers for drug distributors and pharmacies that sought Polster’s recusal from the case questioned his impartiality, saying Polster’s support for a settlement and his court’s involvement in negotiations should disqualify him from presiding over the first trial in the case, which is scheduled to begin Oct. 21.

The United States Judicial Panel on Multidistrict Litigation transferred the cases into Polster’s court in December 2017. The sweeping litigation now involves some 2,000 plaintiffs, including cities, counties and Native American tribes.

Earlier this month, Polster approved a proposal by plaintiffs’ attorneys to create a special class allowing cities and counties across the country to benefit from potential drug company payouts. State attorneys general, who have filed their own suits against drug companies in state courts, opposed that plan.

Three drug companies – Endo, Allergan and Mallinckrodt – already reached settlements with Summit and Cuyahoga counties. And last week, Purdue Pharma, creator of the painkiller OxyContin, filed for bankruptcy as part of a tentative multi-billion-dollar settlement agreement.

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