Maddie McGarvey / The New York Times
Tuesday, March 6, 2018 | 2 a.m.
CLEVELAND — Here are a few choice mutterings from the scrum of lawyers outside Courtroom 18B, about the federal judge who summoned them to a closed-door conference on hundreds of opioid lawsuits:
“Over his head.”
And the chorus: “This is not how we do things!”
Judge Dan Aaron Polster of the Northern District of Ohio has perhaps the most daunting legal challenge in the country: resolving more than 400 federal lawsuits brought by cities, counties and Native American tribes against central figures in the national opioid tragedy, including makers of the prescription painkillers, companies that distribute them, and pharmacy chains that sell them. And he has made it clear that he will not be doing business as usual.
During the first hearing in the case, in early January, the judge informed lawyers that he intended to dispense with legal norms like discovery and would not preside over years of “unraveling complicated conspiracy theories.” Then he ordered them to prepare for settlement discussions immediately.
Not a settlement that would be “just moving money around,” he added, but one that would provide meaningful solutions to a national crisis — by the end of this year.
“I did a little math,” he said, alluding to the rising number of overdoses. “About 150 Americans are going to die today, just today, while we’re meeting.”
The transcript from that hearing has created a ruckus in legal circles. Adam S. Zimmerman, a professor at Loyola Law School in Los Angeles, has begun teaching it in his classes.
“We say we want judges to be umpires,” Zimmerman said. “But when there’s a large social problem at stake, judges can be umpires for only so long, before they decide it has to be solved.”
Lawyers on both sides would not speak on the record, noting that to criticize the judge presiding over their case would be professional suicide. But in private conversations, many were scathing, questioning his grasp of the issues and predicting that a stepped-up timetable was bound to collapse.
Can Polster pull this off?
“These are bold things for a judge to say and it’s exciting and intriguing to follow,” said Abbe R. Gluck, a professor at Yale Law School who directs the Solomon Center for Health Policy and Law. “But to say that his goals are ambitious would be an enormous understatement.”
Rather than just one kind of industry defendant, this litigation has several, each playing a different role — not only drugmakers but distributors and retailers. That makes the apportionment of liability even more contentious, with defendants blaming one another.
All the defendants say the drugs were approved by the Food and Drug Administration and prescribed by doctors.
Plaintiffs claim that manufacturers, like Purdue Pharma and Johnson & Johnson, aggressively marketed the pills for years, despite knowing about addictive properties; that distributors, like McKesson and Cardinal Health, shipped alarming quantities without reporting to the authorities; that pharmacy chains, like Walgreens and CVS Health, looked away while selling flag-raising amounts to individuals.
Adding weight to the plaintiffs’ case, the Justice Department filed a so-called statement of interest in the litigation last week, to emphasize the government’s “substantial costs and significant interest in addressing the opioid epidemic.”
The theories under which parties are suing make for a legal cacophony: public nuisance laws; fraud, racketeering and corruption; violations of federal and state laws on controlled substances. With the judge pushing for settlement, legal experts worry that these arguments may not get full consideration.
“Courts are hard-wired for litigation,” through which facts can come to light, said Elizabeth C. Burch, a law professor at the University of Georgia who writes about multi-district litigation. “Here, there’s a short-circuiting of that process. So how do you know if it’s the right settlement if you don’t have all the information in front of you?”
Polster has reminded both sides that if they resist settling swiftly in favor of litigation, they could be setting themselves on a path toward unpredictable jury trials.
The night before the summit, many lawyers, expert witnesses and clients stayed in the same hotel. They gathered in rooms and the restaurant lounge, strategizing, trying to second-guess the judge. On occasion, their voices could be overheard, rising in exasperation.
The following morning a mashup of small-town mayors, big-city lawyers, addiction doctors, pharmacy industry executives and a police chief trooped into Polster’s mahogany-lined federal courtroom, a crowd of nearly 170. Lawyers hoisted folding chairs for overflow seating.
Confusion was ubiquitous. Even the most optimistic admitted to low expectations, predicting that the day would amount to sword-rattling and throat-clearing.
The judge had ordered a closed-door session that morning with tiers of lead lawyers, their experts and clients, to educate him on the issues. Immediately after, he would begin settlement discussions.
To that end, he had also invited representatives from two groups of state attorneys general, neither in his official purview. One group of about 10, which included Mike DeWine from Ohio, had already filed lawsuits in their home state courts. Another group of 41 AGs, who are cooperating in their own prescription opioid investigation, have not yet filed.
But though the attorneys general are not parties in this litigation, legal experts say their input is essential to its success: The defendants will likely insist on a settlement that would resolve most, if not all, the state lawsuits as well as the federal ones.
After the morning session, Polster summoned the attorneys general into the courthouse auditorium to air grievances. Other lawyers withdrew to the cafeteria, waiting their turn.
Tides of earlier skepticism about Polster began receding. Some noted that he seemed pretty smart and asked some good results-driven questions.
“Classic Polster,” said Pete Weinberger, a Cleveland plaintiffs’ lawyer who has appeared before the judge in other cases, saying he seemed to listen intently and probe with pragmatism. “His questioning focused on reducing the number of pills in the chain of distribution.”
Leaving the courthouse, Mark S. Cheffo, who represents Purdue Pharma, the makers of OxyContin, tersely characterized the mood as “cautiously optimistic.”
Just 10 days later, Purdue announced it would no longer market OxyContin to prescribers. “This is a stunning about-face by Purdue, which has long contended that it has not influenced physician education with its drug reps,” said Dr. Anna Lembke, a Stanford addiction specialist who spoke at the Cleveland session. “I think the overwhelming pressure from Judge Polster, not to mention the court of public opinion, led to this radical reversal.”
Purdue issued a statement last week saying the company was “fully engaged in the process that Judge Polster has set in action to explore meaningful solutions” to the opioid crisis.
On Tuesday, delegations of all-star litigators and representatives of the attorneys general are to return to Courtroom 18B to begin negotiating “economic and noneconomic issues.”
With countless lives and billions of dollars at stake and both sides arguing their cases in the media, the obstacles to resolution seem staggering.
Yet on numerous occasions, Allen L. Bohnert, a former law clerk, has watched Polster take on the intractable.
“At the end of a long day where it looked like there wouldn’t be a settlement, he’d walk out with one,” said Bohnert, now an assistant federal public defender. “And he’d wink and say, ‘Sometimes it takes a federal judge.'”