(Reuters) - Defendants in the megabillion-dollar litigation over opioid abuse have not been shy about policing the way they’re characterized by their opponents. Emotions run high in these cases, in which about 2,000 states, counties and cities have accused pharmaceutical companies, distributors and pharmacies of sparking an epidemic of drug abuse with deceptively marketing and sales of prescription opiates. And as I’ve reported, pharma defendants - which argue that their marketing and sales were strictly regulated by the government - have twice alerted the Cleveland federal judge overseeing the nationwide multidistrict litigation about provocative comments by plaintiffs’ lawyers, including one who called defendants “thugs” and “sociopaths.” (U.S. District Judge Dan Polster responded with reminders to the parties that Ohio ethics rules preclude impugning the character of your opponents outside of court.)
But now some of the defendants in the Florida attorney general’s suit are going after a judge for his comments about them. This week, Allergan, Actavis, Teva, Cephalon, Endo and Mallinckrodt filed a petition asking a state appeals court to disqualify Pasco County Circuit Court Judge Declan Mansfield, arguing that the judge’s comments at a hearing on defendants’ dismissal motion suggest that he is biased against them and cannot give defendants a fair trial.
The defendants provided a full transcript of the hearing as part of an April 12 motion asking Judge Mansfield to recuse himself. His allegedly biased remarks were contained in one off-the-cuff riff that was prompted by a mention of tobacco companies. The judge said that opioid defendants “learned from tobacco companies what to do, to try and misrepresent,” and compared the defendants to “ostriches” ignoring the facts of opioid abuse. He posited that pharma defendants had engaged in “a concerted effort” and “manufactured” the crisis of prescription opioid abuse.
The judge also said he had firsthand experience of the epidemic. In “our community of Hudson,” he said, there were 2.2 million pills prescribed in just one year. “That doesn’t surprise me,” he said. “If you had lived here, you would have seen the caravan of buses coming down from other states and getting prescriptions filled at an alarming rate.”
Judge Mansfield denied the recusal motion in a one-paragraph order on April 19. The defendants filed their petition asking the 2nd District Court of Appeal to remove the judge on Tuesday.
On Thursday, the state appeals court stayed the underlying case until it resolves the writ. It also called for a response to defendants’ arguments from the Florida AG, Ashley Moody. Moody’s spokesperson declined in an email to comment on the disqualification motion.
The appellate order pauses a case headed for discovery after Judge Mansfield’s April 19 denial of defendants’ dismissal motions. The judge did not provide substantive analysis of his decision to allow the AG’s case to proceed, but at the dismissal hearing, he noted that he was required at that stage of the litigation to assume the truth of the plaintiffs’ allegations. He also quoted from a report by the magistrate in the federal MDL, who said that opioid plaintiffs’ overarching theory – that defendants improperly boosted sales of prescription opioids and then failed to report suspicious orders – was “not so indirect, unforeseeable or illogical that defendants must prevail as a matter of law.”
The Florida opioid defendants told the Florida appeals court that Judge Mansfield’s comments led them “reasonably to believe he is biased, has prejudged the issues of defendants’ culpability and otherwise has reached conclusions about the litigation based on his perception of events outside the record.” I emailed defense lawyers who signed the appellate petition from Hill Ward Henderson (for Allergan), Phelps Dunbar (for Mallinckrodt), Morgan Lewis & Bockius (for Teva) and Carlton Fields (for Endo) but didn’t hear back.
There’s no question that opioid abuse has touched millions. It’s not surprising that among those affected are judges hearing some of the more than 2,000 suits that have been filed against the companies that made and distributed the drugs. As Judge Polster said in a decision denying defendants’ motion to dismiss claims by two bellwether Ohio counties, “it is hard to find anyone in Ohio who does not have a family member, a friend, a parent of a friend or a child of a friend who has not been affected.”
We’ll see if the Florida appeals court agrees with defendants that Judge Mansfield allowed his personal feelings to create an appearance of bias. At the very least, the defendants have bought themselves some time, but it may end up coming at the expense of further riling an already skeptical trial judge.