U.S. District Judge Dan Polster

On Saturday, a bunch of very accomplished lawyers filed a very odd motion in the opioid MDL: They asked U.S. District Judge Dan Polster in the Northern District of Ohio to recuse himself from overseeing the litigation.

The request by lawyers from Reed Smith; Williams & Connolly; Covington & Burling; Zuckerman Spaeder; Morgan, Lewis & Bockius; Locke Lord; Bartlit Beck and Jones Day representing drug wholesalers and retailers (but not the actual manufacturers) comes 20 months after the first hearing in the MDL, and after more than 2,600 documents have been filed in the case. The first bellwether trial is set to start on Oct. 21 in Cleveland. 

Defense counsel make much of comments that Polster made at the initial January 9, 2018 hearing such as, "My objective is to do something meaningful to abate this crisis … dramatically reduc[ing] the number of opioids that are being disseminated, manufactured and distributed … and [assuring] that we get some amount of money to the government agencies for treatment."

The judge also said "We're losing more than 50,000 of our citizens every year," and that "150 Americans are going to die today, just today, while we're meeting." 

"We don't need—we don't need a lot of briefs and we don't need trials," Polster said. "They're not going to—none of them are—none of those are going to solve what we've got." And he said, "[I]n my humble opinion, everyone shares some of the responsibility, and no one has done enough to abate it."

Given the context, Polster's remarks don't strike me as outrageous. But defense counsel assert that "Under settled law, any one of these statements would be enough to cause a reasonable person to question a judge's impartiality. … Those comments cannot be explained or excused as a dramatic flourish at the opening hearing, in a jammed courtroom, with an overflow audience of parties and press."

Mmmkay maybe, but if so, why didn't defense lawyers raise those concerns at the time? If they sincerely felt they couldn't possibly get a fair shake, they should have spoken up before Polster put in so much work on the case. Judicial resources are scarce. Wasting a judge's time is not cool.

The defense lawyers also complain about Polster's "singular focus on, and substantial involvement in, settlement discussions."

Please.

Because so many MDLs otherwise go to trial?

Because other judges don't sometimes strongly encourage parties to settle? (Consider for example the comments last month by U.S. District Judge Charles Breyer in San Francisco, who took it upon himself to stay all discovery in a fight between VW and the SEC and ordered to the parties "to sit down and see if you can work it out.")

Moreover, Polster did in fact authorize a litigation track ("reluctantly" according to defense counsel).

But they complain about "an unprecedentedly short schedule—nine months from the commencement of discovery until trial, in two cases, with four plaintiffs and more than 20 defendants, involving a number of opioid medications and alleged wrongful conduct over a 25-year period—with the transparent purpose of pressuring the parties to settle."

"Transparent purpose"? Or maybe the judge set tight deadlines because he didn't want to drag the cases out for years. Because 150 people are dying each day and there are about 2,000 cases in the MDL.

Besides, the lawyers who signed this motion on behalf of clients including CVS, Rite-Aid, Cardinal Health and AmerisourceBergen, come from firms that employ a combined 8,200-odd lawyers. I think they (along with the army of co-counsel for the actual drug makers) can scrounge up the resources to try a case in nine months.

Or here's a crazy thought. Could it be the defendants want Polster gone because—as my colleague Amanda Bronstad noted in coverage last week—the judge "continues to side with plaintiffs in summary judgment orders out this month"? Last week, he found that public nuisance claims and racketeering allegations should go before a jury.

I can't imagine the instant motion will succeed, that Polster will say, "Gee, now that you mention it, I will just DQ myself." But it does send a signal to the judge to watch it—and leaves open a potential avenue of appeal.