Judge won't oust opioid special master for bungled email that 'should have been protected, rather than exploited'
U.S. District Judge Dan Polster of the Northern District of Ohio praised a special master, David R. Cohen of Cleveland, and said his email “was unquestionably a privileged judicial deliberative memorandum to himself.” Image from Shutterstock.
A federal judge in Ohio has rejected a motion to disqualify a special master overseeing opioid litigation over a mistaken “reply all” email that claimed two defendants had a goal “to complicate and delay.”
U.S. District Judge Dan Polster of the Northern District of Ohio praised the special master, David R. Cohen of Cleveland, and said his email “was unquestionably a privileged judicial deliberative memorandum to himself.”
Cohen had intended to email the notes to himself but mistakenly hit “reply all,” which sent the notes to lawyers in the case. The email “consisted entirely of his own mental impressions, personal notes and private musings” about status reports, and they lacked full context, Polster said in an Oct. 10 order.
The emails should have been destroyed when Cohen requested it, and it was improper “to even raise an argument about perceived partiality” because the notes were privileged, Polster said.
The notes “should have been protected, rather than exploited,” Polster said.
Lawyers for pharmacy benefit managers OptumRx, part of United HealthCare Services Inc., and Express Scripts Inc., owned by Cigna, had sought to disqualify Cohen, arguing that the notes raise questions about his partiality.
Cohen apparently referred to the pharmacy benefit managers as “PBMs” and plaintiffs as “Ps” in the “reply all” email sent Aug. 28.
In one section of the email, he wrote, “PBMs’ goal is to complicate and delay (including a request to do nothing and set a status 4 weeks hence). I say let Ps add claims against PBMs as mail-order pharmacies. … Claims against PBMs as mail-order pharmacies will show how much PBMs knew (and they knew a lot).”
Cohen said in an affidavit the “complicate and delay” comment was in response to an assertion by the pharmacy benefit managers that they would have to add third parties if the plaintiffs are allowed to amend their complaint. The effect would be to complicate and delay, Cohen said.
Cohen said the “knew a lot” comment was “echoing Express Script’s own observation that PBMs have unique, large collections of prescription opioid data.”
When the notes are read as a whole, they demonstrate Cohen’s “even-handedness,” according to Polster.
“No reasonable observer could question the special master’s impartiality based on his inadvertently circulated email,” he wrote.
Law360 and Law.com had coverage of Polster’s decision.
