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Judge in massive opioid trial denies bias, refuses to disqualify himself

Eric Baradat/AFP/Getty Images

A federal judge presiding over a historic civil lawsuit in Ohio against drug distributors, pharmacies and retailers for their roles in the opioid crisis on Thursday denied a motion to step down on grounds he has shown bias.

US District Court Judge Dan Polster, who is hearing the case in Cleveland, questioned why lawyers for seven of 22 defendants waited more than 18 months to question his impartiality based on comments he made at hearings, media interviews and public forums.

The landmark trial is set to begin next month. It combines nearly 2,000 cases involving cities, counties, communities and tribal lands, accusing opioid makers of causing the epidemic.

“The undersigned is confident that the imminent trial of the first bellwether case, along with the parties’ ongoing settlement negotiations — addressing not only the bellwether trial, but also global resolution — will continue to bear fruit,” Polster wrote in his decision.

“And the undersigned is confident that no reasonable person can legitimately question my impartiality.”

The motion filed by the defendants earlier this month said Polster pushed the companies to settle and that his public comments demonstrated bias and prejudice.

The defendants maintained the judge participated in at least seven media interviews, including one in which he let a reporter trail him for a day, and made other public comments about the case. They argued the judge “expressed a strong personal conviction that his role is to strong-arm the parties into a settlement that will abate an ongoing opioid crisis, not just resolve the legal issues presented by the cases.”

Polster “prejudged the responsibility of all defendants for ‘the opioid crisis'” and “foresaw the outcome of the process as getting ‘some money to the government agencies for treatment,'” the motion said.

“Since we’re losing more than 50,000 of our citizens every year, about 150 Americans are going to die today, just today, while we’re meeting,” the motion quoted Polster as saying at one point.

Polster considers the trial a bellwether that could influence how other suits are resolved. There was insufficient time for another judge to prepare for a case he’s handled nearly two years, he said. The trial would have to be postponed.

Jury selection in the case — one of dozens against opioid drugmakers across the nation — is set to begin October 16.

Polster wrote he has “simultaneously and vigorously” pursued resolution by both through trial and settlement.

The federal judge said he has been careful to assign responsibility for the crisis to all sides, including defendants, plaintiffs, the federal government, the medical profession and even individual drug users.

“All of these groups are responsible to some degree for having created the opioid crisis, and all who have the power to do so must now take some responsibility for fixing it,” he wrote.

In 2016 and 2017, more than 130 people died every day in the United States after overdosing on opioids. Overdoses accounted for more than 70,000 deaths in 2017, and 47,600 of those deaths involved opioids.

According to the US Centers for Disease Control and Prevention, from 1999 to 2017, more than 702,000 people have died from a drug overdose.

“There are few if any Ohioans who don’t have a family member, a friend, a parent of a friend, or a child of a friend who has not been impacted,” Polster wrote.

“I have made this observation several times, partly to underscore how important resolution of this litigation is to all of our citizens (not just the parties themselves), and partly to reflect how hard it may be to pick a jury.”

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