Judge in federal opioid lawsuit reverses course, refuses to delay trial

The federal judge overseeing consolidated cases arguing opioid manufacturers and distributors are responsible for the nationwide prescription drug epidemic has committed to an October trial date to further encourage settlement discussions, according to legal experts and a plaintiff's lawyer.

U.S. District Judge Dan A. Polster of the Northern District of Ohio indicated he has pivoted from sidestepping litigation in the hopes of quickly doing "something meaningful to abate this crisis," as he put it last year, to moving forward with discovery and keeping the case on track for trial.

"The court can only conclude that defendants are proposing an indefinite postponement of the trial," Polster wrote Thursday in his denial of the defense's emergency motion to reconsider the expert discovery schedule. "No court would take such a proposal seriously."

The order is consistent with the judge's "recent posture toward the case," said Anne M. Murphy, who is the lead attorney representing San Mateo County in the litigation. Polster's decision must be viewed through the lens of laying out a path to resolving the cases by pressuring the parties with a trial date, she continued.

"You have to layer over [the order] with his very clear statements throughout that this is a case that should settle," the Cotchett, Pitre & McCarthy LLP attorney said. "The best tool to get a case to settle is to keep a trial date."

Polster acknowledged in the order that he has granted "for nearly every deadline at least a 45-day extension." This included a postponement of the first trial from Sept. 3 to Oct. 21.

Defendants complained that "the schedule is compressed to the point of being unworkable and fundamentally unfair," in their motion to extend the discovery deadline.

The judge shot back that the defense proposed the schedule and that "nothing significant has changed since then."

"I expect that he has two goals in mind: going full force toward trial preparation but also to seeing if there's any chance to settle," Murphy said.

There are more than 1,500 opioid cases before Polster. In re: National Prescription Opiate Litigation, 17-MD2804 (N.D. Ohio, filed Dec. 12, 2017).

Polster insisted last year that attorneys should focus on settling, according to Fordham University School of Law professor Howard M. Erichson.

"I don't think anyone in the country is interested in a whole lot of finger pointing at this point, and I'm not either," Polster said at a Jan. 8 hearing, according to court transcripts.

"People aren't interested in depositions, and discovery, and trials," the federal judge said. "People aren't interested in figuring out the answer to interesting legal questions like pre-emption and learned intermediary, or unraveling complicated conspiracy theories."

Loyola School of Law professor Adam S. Zimmerman said the judge has since realized that he cannot force a settlement without giving both sides further indication of evidence that will be presented or experts who will testify, among other factors. Moving forward with litigation creates leverage, he continued.

Both sides have been raising issues with the discovery process on a daily basis, namely with respect to the number of experts who will testify, according to Murphy. Polster has encouraged the parties to scale back the number of experts they plan to present.

Defense attorneys have sought to exclude testimony from Dr. Russell Portenoy, a physician consultant for Purdue Pharma who is accused by the plaintiffs of misrepresenting the safety and therapeutic impact of opioids that was used in marketing materials to doctors.

The Yeshiva University professor of medicine agreed to switch sides and cooperate with plaintiffs' attorneys last year in exchange for settling claims against him. He is referred to as "spokesman" for Purdue in court filings.

The defense has argued plaintiffs' attorneys improperly kept their agreement with Portenoy to testify for them a secret and that parts of document production during discovery were not handled appropriately.

The October trial has taken on renewed significance, according to Murphy, because Purdue Pharma settled in the Oklahoma state court case, which was scheduled for May. An Orange County Superior Court trial date, which was scheduled for June, was vacated. County of Orange v. Purdue Pharma, 14-00725287 (Orange County. Super. Ct., filed May 21, 2014).

"Many people view Purdue as being one of the most important of defendants, if not the most important, if you look at history of opioid epidemic," she said. "A lot of new information continues to be uncovered about Purdue."