No matter how often plaintiffs’ attorneys and leftist activists pretend otherwise, it is insanely unfair to blame the opioid epidemic on pharmacists filling otherwise valid prescriptions from licensed physicians.
Unfortunately, U.S. District Judge Dan Aaron Polster keeps turning legal doctrine on its head while clearly favoring plaintiffs in a trial trying to pin the blame on pharmacists for merely doing their jobs. Despite several prior rebukes from the U.S. Court of Appeals for the 6th Circuit, Polster is turning the trial into a fiasco.
In the suit, two Ohio counties (not even the actual opioid “victims,” but the governments) are suing four pharmacy chains for allegedly creating a “public nuisance” by filling prescriptions for painkillers. The theory is that the counties end up spending public resources to deal with the epidemic and that the pharmacies should have refused to fill the prescriptions.
This case has been in the works for several years. Polster has repeatedly abandoned neutrality to show strong favoritism to the plaintiffs. He limited pretrial discovery, arbitrarily narrowed the list of defendants to just four (and arguably the wrong four at that), and threatened the defendants with bankruptcy if they wouldn’t agree to pay tens of millions of dollars in settlements (as part of billions of settlement dollars he wants to catalyze in consolidated cases nationwide). He also barred the media from key court proceedings and allowed plaintiffs to add to their legal claims long after the customary deadline.
In one of the 6th Circuit reversals of Polster’s earlier actions in the case, Judge Eric Clay, a Bill Clinton appointee, wrote that Polster had wrongly tried to create “a new form of class action, wholly untethered [from existing law] … [which] may not be employed by a court.”
Polster narrowed the defendant list to four major chains (Walmart, CVS, Walgreens, and Giant Eagle), even though the large majority of opioid prescriptions are filled by small pharmacies, merely because those chains have the deep pockets needed for large payments. (For context, Walmart fills less than 4% of such prescriptions in the two counties involved.) It is also important to point out that most of the drugs that actually are abused come from gangs and pill mills, using pharmaceuticals illegally smuggled into the country. In other words, the opioid crisis was hardly fueled in these counties by the big familiar pharmacy chains, but this judge wants to keep the focus on them because they have the means to pay.
More strangely, the plaintiffs (as summed up by one news report) “admitted on the front end that they won’t present any evidence of specific narcotic prescriptions the pharmacies shouldn’t have filled.” They are essentially asking the companies to prove that they had no way to know they were contributing to an epidemic. In short, they want the company to “prove the negative” — specifically that they should have kept records proving that the prescriptions were not being misused.
Polster is letting plaintiffs’ attorneys argue that the chains should have known something was askew because of statistical anomalies the lawyers produced for the trial. Never mind that no law requires them to track such statistics or to keep records in order to prove a negative later on. Even the liberal New York Times reported that many lawyers on both sides “were scathing, questioning [Polster’s] grasp of the issues.”
Then again, Polster has shown little recognition that his job as a judge is to be an honest arbiter and not a social crusader. Nearly four years ago, for example, he said that: “My objective is to do something meaningful to abate the [opioid] crisis and to do it in 2018.” And, another time, “The judicial branch typically doesn’t fix social problems, which is why I’m somewhat uncomfortable doing this. But it seems the most human thing to do.”
The trial is expected to last another three or four weeks. A jury will decide the outcome, but juries are famously susceptible to judges’ cues. This case is a mess, and the judge is hopelessly biased. If the jury finds in favor of the plaintiffs, one can only hope the 6th Circuit reverses this madness on appeal.
