Is Settling the Opioid Crisis the Job of a Maverick Judge?

POLITICS & POLICY
Federal Judge Dan A. Polster of the U.S. District Court’s Northern District of Ohio. (Northern District of Ohio/Handout via Reuters)
In a case of epic proportions, Judge Polster employs threats and secrecy to wring a speedy settlement out of Big Pharma defendants.

Somewhat off America’s radar screen is a legal case, of the huge-implications variety, that is not only vast and complex but also a nose-thumbing to those (naïvely?) believing that social policy should be set by the people’s legislative representatives, and not by judges.

Or in this case — formally known as the National Prescription Opiate Litigation — by one judge. His name is Dan Polster, a 1998 Bill Clinton appointee (now with “senior status”) who, since 2017, has overseen this epic “multidistrict litigation” (MDL in jurisprudence parlance) from his bench in Cleveland’s Carl B. Stokes U.S. Court House.

Complex? That’s an understatement. The case involves thousands of communities and plaintiffs (and numerous defendants, including corporate behemoths such as Walmart and CVS) who have leveled this in-a-nutshell accusation:

Plaintiffs allege that the manufacturers of prescription opioids grossly misrepresented the risks of long-term use of those drugs for persons with chronic pain, and distributors failed to properly monitor suspicious orders of those prescription drugs — all of which contributed to the current opioid epidemic.

There is no question of there being an epidemic, of its social devastation, or of its staggering body count: According to the Centers for Disease Control, between 1999 and 2019, nearly half a million people died “from an overdose involving any opioid, including prescription and illicit opioids.” And things are getting worse. True, prior to the coronoavirus pandemic, opioid deaths declined in 2016. But the graph’s arrow has moved upward once again: America witnessed a 6 percent increase in opioid-related deaths from 2018 to 2019 (the last year of available CDC figures).

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Who’s culpable, who’s to pay, and who’s to get paid (other than the trial lawyers, of course)? How does justice prevail? There is a rationale for multidistrict litigation, for corralling and consolidating the thousands of far-flung but similar lawsuits into one venue. But the consolidation also tempts the presiding jurist with massive power, including the authority to de facto craft policies of national scope and permanence.

The jurist presiding at the Cleveland venue is a man fond of big scopes, and he has shown a proclivity for knocking heads. Judge Polster understands his potential in this case, and he’s embraced it. He sees the envelope, and pushes. His unorthodox — might one even say dictatorial (others might say “innovative”)? — means of handling this consequential litigation have placed him in the spotlight, and he is facing criticisms for his drive to demand quick settlements (a quote: “We don’t need a lot of briefs and we don’t need trials”) loaded with profound policy implications and colossal payouts.

It should come as no surprise. From the outset, when the MDL commenced in 2018, Polster was up front about the outcome he expected, and how quickly he expected it, and how he planned to forge it:

So my objective is to do something meaningful to abate this crisis and to do it in 2018. And we have here — we’ve got all the lawyers. I can get the parties, and I can involve the states. So we’ll have everyone who is in a position to do it. And with all of these smart people here and their clients, I’m confident we can do something to dramatically reduce the number of opioids that are being disseminated, manufactured, and distributed. Just dramatically reduce the quantity, and make sure that the pills that are manufactured and distributed go to the right people and no one else, and that there be an effective system in place to monitor the delivery and distribution, and if there’s a problem, to immediately address it and to make sure that those pills are prescribed only when there’s an appropriate diagnosis, and that we get some amount of money to the government agencies for treatment. Because sadly, every day more and more people are being addicted, and they need treatment. . . .

But that’s what — I think we have an opportunity to do it, and it would be an abject abdication of our responsibility not to try it. And if we can’t, then we’ve got to do the other way. And if we can get some general agreement that we should try it, then we’ll figure out today, how do we organize that effort, who is not here that we need to get involved, and we’ll get about doing it and what help I’ll need.

Could Polster single-handedly — via the hand holding the gavel — establish national policy? A Wall Street Journal op-ed — “Can a Judge Solve the Opioid Crisis?” — touched on the key point: “Is a federal courtroom, presided over by a single judge, a better forum for making policy than 50 state legislatures or Congress?”

Defendants who face billions in payouts (again, much of which will go to law firms handling the matter, this being the American way) might think that having their day in court is less a cliché and more of a right and a principle that trump the be-all, end-all virtue that Polster — whom they have accused of bias — has attributed to settlements.

And yet in the summer of 2021, the National Prescription Opiate Litigation remains unsettled, and not for want of the judge’s hopes and hectoring.

There’s been a lot of the latter.

Judge Polster is regarded (maybe not well) for his propensity to level threats, and harsh ones (if that’s an acceptable description of implications of bankruptcy). Earlier this year, in a segment of the MDL involving pharmacy defendants, Polster browbeat CVS, Walmart, and others to accept a pre-trial agreement that would require staggering payouts. As Legal Newsline reported:

At a hearing earlier this month, U.S. District Judge Dan Aaron Polster repeatedly told lawyers for Walmart and other national pharmacy chains that the companies risked bankruptcy if they refused to pay tens of billions of dollars to settle their cases and insisted on going to trial instead.

“I don’t want to do this,” Judge Polster said at the hearing, which was ostensibly about setting several representative or bellwether cases for trial around the country to test whether the plaintiff theories have merit. “I don’t want to do any of these other trials, but again, the pharmacists aren’t giving me a lot of choice.”

Then, in a more direct warning to the lawyers before him, the judge said it was implausible the companies would actually fight the claims against them in court.

The browbeating didn’t work. Not yet anyway. And maybe it’s not to be: After three years of engagement with the caustic jurist, the honeymoon, if there ever was one, seems long over. Polster’s controversial proclivities and rulings have found their ways to higher authorities, which have often issued thundering reversals.

In 2020, the U.S. Court of Appeals for the Sixth Circuit, which oversees the district court in the Northern District of Ohio, admonished Polster for “clear abuse of discretion,” after Polster had allowed plaintiffs to bring new charges against national pharmacy chains a year after the deadline for doing so.

There have been other setbacks. Polster had sought to extend existing Federal Rules of Civil Procedure in order to create what he called a “negotiation class” — a means to empower local governments and facilitate settlements. Maybe there was something in the Rules’ penumbras? Nope: In September 2020, this “novel mechanism,” which lacked any existence in federal law (“wholly untethered,” in the words of one judge), too was kyboshed by the Sixth Circuit.

And then there is Polster’s secrecy penchant. He notably barred reporters from attending a 2019 pre-trial courtroom conference at the MDL’s outset, earning him a strong rebuke from the Reporters Committee for Freedom of the Press. This was a follow-up to Polster’s earlier gag order barring attorneys from discussing the case with reporters, and to his ruling to prevent the release of government data on opioid sales and shipments, all pertinent to the MDL. The Washington Post appealed that order, which earned Polster another sharp reversal by the Sixth Circuit (“Appeals court blasts Cleveland judge’s secrecy in opioid litigation,” read the Cleveland.com headline).

The MDL grinds on, maybe to some definable result, or maybe to collapse from the sheer weight of its every countless aspect, down to every unlawful prescription written and every excessive prescription filled? So one wonders: Can true justice be rendered, and retribution be assigned, to address the tragedy — the utter and staggering calamity — that has swept through millions of American homes, courtesy of little pills that promise relief from pain but too often result in addiction and death, bankruptcy and orphans, crime and destruction?

And one wonders this, too: Can this opioid epidemic be stopped, and solved, by one man? By this man?

Does America, if it even knows of this massive case now occupying a Cleveland courthouse, believe that Judge Dan Polster has shown that he is that man, the one to do right by America, in the name of justice . . . or, in the name of settlement?

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