Walmart, Walgreens, CVS, Rite Aid and drug distributors AmerisourceBergen, McKesson and Cardinal Health told the 6th U.S. Circuit Court of Appeals in Cincinnati that Cleveland-based U.S. District Judge Dan Polster is not impartial.
Polster made the initial ruling on their claim, declining Thursday to remove himself from the massive multidistrict litigation and insisting he has remained neutral. "Publicly acknowledging this human toll does not suggest I am biased; it shows that I am human," he wrote at the time.
But defense attorneys argued in Tuesday's filing that Polster has been too involved in settlement talks surrounding the more than 2,000 cases in which cities, counties, tribal governments and unions seek damages from the pharmaceutical industry for the national opioid crisis.
"Petitioners do not make this request lightly," they wrote. "But the extraordinary nature and number of the Judge's actions and comments leave Petitioners no choice. Judge Polster has lost sight of his judicial responsibilities under Article III — neutrality, discretion, and restraint."
A graduate of Harvard Law School, Polster was nominated for the federal bench by Democratic President Bill Clinton. He was confirmed in 1998. The latest in the dispute over Polster's fitness to preside over the case comes less than three weeks before the first jury trial is set to begin. That bellwether trial is to involve Akron — Ohio's fifth-largest city — and the surrounding Summit County, as well as Cleveland's Cuyahoga County.
The companies said the timing is intentional because they want Polster removed before jury selection begins on Oct. 16, with trial following Oct. 21. Lawyers for the plaintiffs said they are aggressively preparing for trial and hoping the 6th Circuit would not remove Polster.
"We hope the 6th Circuit sees this move for what it is — another desperate ploy by the defendants to derail the upcoming trial and avoid accountability for their role in creating the opioid epidemic," they said in an emailed statement.
Follow Julie Carr Smyth at https://twitter.com/jcarrsmyth .