Professor Howard Erichson provided his legal opinion to the New York Times on the motion filed by pharmacy retailers and drug distributors to disqualify the judge presiding over the bellwether Ohio case and nearly 2,300 other opioid-related lawsuits.
Legal experts said they were surprised at the timing of the move to disqualify the judge, as well as what they called the extraordinary nature of the request. Although there is precedent for the recusal of federal judges, rarely are such motions granted so late in the process.
Howard Erichson, a Fordham law professor who is an expert on complex litigation and legal ethics, noted that the request came after a recent flurry of pretrial decisions against the defendants by Judge Polster.
“If recent rulings had been going the defendants’ way, they wouldn’t be seeking to get rid of the judge, despite his remarks to the press,” Mr. Erichson said.
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Mr. Erichson thinks the effort has only a slight chance of working, not least because the question first goes to Judge Polster for a decision.Given the likelihood that the effort will fail, Mr. Erichson said, the strategy behind the 11th-hour gambit heading could be to push Judge Polster to rule more favorably for defendants during the trial, by making him feel exposed to scrutiny.
But the move is very risky, he added, because it could merely manage to irritate the judge.