By Jonathan Stempel
(Reuters) – A federal appeals court on Thursday cleared the way for a landmark trial over the nation’s opioid crisis, rejecting a bid by eight drug retailers and distributors to disqualify the judge, and a request by Ohio and other U.S. states to delay an Oct. 21 trial.
The 6th U.S. Circuit Court of Appeals in Cincinnati said U.S. District Judge Dan Polster, who oversees nationwide opioid litigation, had not created an appearance of bias against the drug industry through his rulings, public statements, and efforts to encourage settlements.
Companies that sought Polster’s recusal included retailers CVS Health Corp, Rite Aid Corp, Walgreens Boots Alliance Inc and Walmart Inc, and distributors AmerisourceBergen Corp, Cardinal Health Inc, Henry Schein Inc and McKesson Corp.
The appeals court also said Ohio failed to show that letting the trial proceed would undermine its right to litigate on its own. Thirteen other states and Washington, D.C. joined Ohio’s effort to delay the trial.
AmerisourceBergen declined to comment. Lawyers for the other companies had no comment or did not immediately respond to requests for comment.
In a Thursday afternoon filing, Ohio Attorney General Dave Yost, who sought the trial delay, said he may appeal to the U.S. Supreme Court.
Polster oversees more than 2,300 of the roughly 2,600 lawsuits by state, local and tribal governments, hospitals and other entities seeking to hold the drug industry responsible for the toll of opioid abuse.
Opioid addiction claimed roughly 400,000 lives in the United States from 1999 to 2017, according to the U.S. Centers for Disease Control and Prevention.
The industry wants to avoid a prohibitively costly bill, and the retailers and distributors faulted Polster for saying it was his “personal mission” to address the crisis.
Ohio’s Cuyahoga and Summit countries are the only plaintiffs in the Oct. 21 trial in Cleveland, the first in a federal court over the crisis. Defendants include the four drug distributors, Walgreens and drugmaker Teva Pharmaceutical Industries Ltd.
The counties’ lawyers said in a statement they remained committed “whether through negotiation or litigation” to help communities address the opioid epidemic, and Polster was being “pragmatic” in encouraging a settlement.
In letting Polster stay on, the appeals court said judges in complex cases were encouraged to pursue settlements early.
It admonished the judge to be more careful talking to the press and in court, saying his comments may “in isolation” appear to reflect bias though they did not warrant recusal.
“We do not encourage Judge Polster to continue these actions,” especially in “a case of such enormous public interest and significance,” the court said.
(Reporting by Jonathan Stempel in New York; Editing by David Gregorio and Bill Berkrot)
