Professor Howard Erichson provided his expert perspective to Law 360. His comments focus on the efforts by the defendants in a high profile opioid distribution case to disqualify the presiding judge for showing bias toward a settlement outcome.
The unexpected broadside Saturday contended that U.S. District Judge Dan Aaron Polster’s longtime fixation on settling the epic MDL and his stated goal of easing the opioid crisis have created the appearance of bias, leaving the judge no choice but to bow out of the litigation.
“In cases like these of such national significance … any reasonable question about the court’s impartiality cannot be tolerated,” the distributors and pharmacies wrote in their motion for disqualification.
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Judge Polster has arguably been more zealous than most MDL judges about advocating for settlement, and he only grudgingly created a formal litigation track in the first place. But the idea that his advocacy crossed an ethical line seems much less clear, experts said.“The defendants have a point that a judge really should not be so pro-settlement that the judge denigrates the litigation process,” Howard Erichson, a professor at Fordham University School of Law, said Monday. “But I do not think that that’s a basis for disqualifying the judge. … You need to give judges quite a lot of discretion to manage hearings and move the litigation the way they see fit.”