Opioid plaintiffs fight bid to disqualify U.S. judge before trial

[September 17, 2019]  By Nate Raymond

(Reuters) - Lawyers for cities and counties suing drug companies over the opioid epidemic on Monday objected to a bid by pharmaceutical distributors and pharmacies to disqualify the federal judge overseeing the cases, saying it had no basis and came too late.

The plaintiffs' lawyers moved swiftly to fight the request companies including AmerisourceBergen Corp <ABC.N>, Cardinal Health Inc <CAH.N> and McKesson Corp <MCK.N> had made on Saturday for U.S. District Judge Dan Polster in Cleveland, Ohio, to step aside from the litigation.

In Monday's brief, lawyers for the plaintiffs said the defendants had waived their ability to seek Polster's recusal, noting they were relying on statements he made more than a year ago to belatedly seek his disqualification.

"If these Defendants really thought recusal was necessary, they were required to raise the issue sooner - much sooner," the plaintiffs' lawyers wrote.

More than 2,500 lawsuits by state and local governments are pending nationally, accusing drug manufacturers of deceptively marketing opioids in ways that downplayed their risks, and drug distributors of failing to detect and halt suspicious orders.

The companies deny wrongdoing. Nearly 2,100 of the lawsuits are before Polster, while others are in state courts.

The companies had argued in Saturday's motion that Polster, who has long pushed for a settlement that could "do something meaningful to abate this crisis," had made a series of public statements since 2018 that could cause a reasonable person to question his impartiality.

They said those statements, made in court hearings and media interviews, raised the prospect that he had improperly prejudged their liability ahead of the first trial on Oct. 21 involving two Ohio counties seeking $8 billion.

Bottles of prescription painkiller OxyContin pills, made by Purdue Pharma LP sit on a counter at a local pharmacy in Provo, Utah, U.S., April 25, 2017. REUTERS/George Frey/File Photo

In Monday's brief, the plaintiffs' lawyers said the companies did not take action when Polster made those comments and actively participated in court-overseen settlement talks without objection.

Polster "has at no time expressed improper or biased views about the liability of any defendant, much less views based on extra-judicial sources," the lawyers wrote.

The companies who joined Saturday's motion also include CVS Health Corp <CVS.N> and Walmart Inc <WMT.N>. The defendants did not respond to requests for comment.

Opioids were involved in 400,000 overdose deaths from 1999 to 2017, according to the U.S. Centers for Disease Control and Prevention.

OxyContin maker Purdue Pharma, one of the lead defendants, filed for bankruptcy protection on Monday after reaching a tentative deal to resolve claims in the federal litigation and by 24 U.S. states.

(Reporting by Nate Raymond in Boston; Editing by Bill Berkrot)

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