CLEVELAND (Legal Newsline) - A lawyer's sales pitch that went too far isn't reason for me to step down, says the federal judge handling lawsuits against drug-makers, pharmacies and others over the opioid crisis.
Dragged into court fights, pharmacy benefit managers discovered a Florida lawyer was making claims plaintiff lawyers had inside access to Ohio federal judge Dan Polster and that he was friendly to their cause.
Polster already penalized that lawyer - Michael Kahn of Melbourne, Fla. - for spreading that story to various Florida cities he hoped to sign as clients. There are thousands of plaintiffs in the opioid multidistrict litigation, and firms battled to sign as many as they could to ensure a share of the riches.
Kahn was used by some of them for his contacts with Florida communities. He has made $1.7 million for his work, after the penalty.
"(T)he PBMs' subsequent discovery of Mr. Kahn's unsupported misrepresentations, which he retracted under oath, does not combine with anything else the PBMs have long known about to suggest the Court's impartiality might reasonably be questioned, nor to show the Court has a personal bias or prejudice," Polster wrote today.
"The picture the PBMs attempt to draw with their connect-the-distant-dots logic is shapeless."
Polster has presided over the opioid MDL, which has produced tens of billions of dollars in settlements. When claims Walgreens, Walmart and CVS created a "public nuisance" by filling prescriptions made it to trial, two Ohio counties won $650 million.
But on appeal, the Ohio Supreme Court said in December those public nuisance claims shouldnt have been allowed because they were barred by state product-liability laws.
Judge Polster declared at the beginning of his tenure that he wanted to “do something” about the opioid crisis and wasn’t interested in holding trials to test the merits of the claims. He then issued a string of pro-plaintiff rulings that had the effect of forcing settlements.
The key decision he made, without which many of the cases couldn’t survive, was that product liability law doesn’t apply when the plaintiffs are seeking injunctive relief, or “abatement,” even though that involved billions of dollars in cash payments.
Though he says he has no preference for either side, Kahn's remarks to local officials indicate plaintiffs are happy he's on the case. Kahn told the City of Palm Bay that one of the lead plaintiff lawyers - Peter Weinberger of Spangenberg, Shibley & Liber - had "total access to the judge."
He continued to make that claim while pitching his group of lawyers' services to other Florida cities. He went so far as to say Weinberger communicated ex parte (without defendants' counsel being present) with Polster, who he painted as "a tremendous plaintiff-oriented judge" using his "great power and specific intent to try to compel settlement from the defendants."
These comments came to light when Optum and Express Scripts were targeted in May 2024 as deep-pocket defendants whom plaintiffs wanted to add to their cases. The companies made public records requests to make sure city and county plaintiffs actually formally approved suing them.
The minutes of public hearings were produced, leading to the discovery of Kahn's strategy in 2019.
Earlier this year, Polster held a hearing at which Kahn was questioned for more than two hours. He claimed he spoke in a colloquial sense when telling the cities Weinberger regularly spoke ex parte with Polster.
"So it was a dumb statement to make," Kahn testified. "It was an inartful statement, and to borrow Peter's very gracious way of describing it in the transcript, and he graciously calls it 'clumsy.' And it was certainly that."
As for calling Polster "plaintiff-oriented," Kahn pointed to Polster's desire for settlements and his rejection of motions to dismiss while similar cases were stagnant in state courts.
"And so I felt that meant something, but what it didn't mean is to misconvey a situation that you were always going to rule for the plaintiffs or something like that," Kahn said. "I should have used another word."
Ultimately, Polster issued the $100,000 penalty and rejected Optum and Express Scripts' request to question Weinberger. Optum argued years ago that Polster was trying to "exert pressure toward settlement," which Polster dismissed as "simplistic and insulting."
Opioid defendants have repeatedly complained that Polster has taken a one-sided approach to litigation from his first hearing as judge assigned to the MDL, where he said he wanted to “do something meaningful to abate this crisis and do it in 2018.” In 2021, he threatened pharmacy chains they risked bankruptcy if they tried to fight the claims against them.
“I don't want to do this,” Judge Polster said at a March 2021 hearing, which was ostensibly about setting bellwether cases for trial around the country. ”I don't want to do any of these other trials, but again, the pharmacists aren't giving me a lot of choice.”