Optum, Express Scripts bid for judge's ouster from opioid cases denied

The federal judge overseeing nationwide litigation over the opioid crisis has denied pharmacy benefit managers OptumRx and Express Scripts’ demand that he recuse himself from cases against them, saying that he did not have improper communications with plaintiffs' attorneys.

The PBMs had tried to oust the judge based on statements made by plaintiffs' attorney Michael Kahn in 2019, when Kahn was pitching cities and counties on joining the nationwide opioid litigation against drug-makers, distributors, pharmacy chains and other defendants. Kahn said at a city council meeting in Palm Bay, Florida, that the judge, U.S. District Judge Dan Aaron Polster was a "plaintiff-oriented judge" who spoke with certain plaintiffs’ attorneys "every day" and would "push" defendants to settle.

Polster said in a Tuesday decision that Kahn had retracted those statements when questioned under oath, explaining that he "laid it on thick" in an effort to win new clients. Kahn testified that he had no knowledge of any communications between the judge and plaintiffs' attorneys, and he called his 2019 statements "inartful" and "dumb."

Polster wrote that Kahn's 2019 statements "crossed the line into misrepresentation and falsehood," and he previously sanctioned Kahn $100,000, which Kahn paid.

The PBMs presented no other evidence that Polster had had improper communication with lawyers in the opioid litigation, according to Polster’s decision. The judge reaffirmed his past statements that he did not have undisclosed communications with plaintiffs’ lawyers.

Optum did not immediately respond to a request for comment, and Express Scripts referred to its previously filed court papers, which said the judge had not fully addressed the companies' concerns about Kahn's statements.

The opioid litigation, which includes thousands of lawsuits brought by local governments across the country, has already resulted in more than $50 billion in settlements resolving claims that drug manufacturers concealed the addictive pain drugs' risks, and that distributors and pharmacies ignored red flags that pills were being diverted into illegal channels.

Optum and Express Scripts were hit with hundreds of opioid lawsuits in May 2024, after Polster allowed cities and counties to add new defendants to their existing lawsuits filed against drug companies. The PBMs then scoured public records for information about how cities and counties had hired attorneys and decided to join the opioid litigation, which is when they discovered Kahn’s statements to local officials in the Florida cities of Palm Bay, Oviedo, and Fort Pierce, according to the decision.

Plaintiffs alleged that the PBMs promoted addictive opioid drugs in their role as middlemen who negotiate with drug companies, health plans and pharmacies to set prescription drug prices and decide which drugs will be covered by insurance.

Optum and Express Scripts have said that all the claims against them are without merit.

The MDL is In Re: National Prescription Opiate Litigation, U.S. District Court for the Northern District of Ohio, No. 1:17-md-02804.

For plaintiffs: Jayne Conroy of Simmons Hanly Conroy; Joe Rice of Motley Rice; Paul Farrell of Farrell & Fuller; and Peter Weinberger of Spangenberg Shibley & Liber

For OptumRx: Brian Boone of Alston & Bird

For Express Scripts: Jonathan Cooper of Quinn Emanuel Urquhart & Sullivan

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