Opioid special master who mistakenly hit ‘reply all’ asked to step down

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Judiciary Opioid special master who mistakenly hit 'reply all' asked to step down

By Debra Cassens Weiss

September 25, 2023, 2:26 pm CDT

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A special master overseeing opioid litigation is resisting a request to step down after he mistakenly sent lawyers a “reply all” email with private notes to himself. Image from Shutterstock.

A special master overseeing opioid litigation is resisting a request to step down after he mistakenly sent lawyers a “reply all” email with private notes to himself.

Lawyers for two pharmacy benefit managers are seeking to disqualify the special master, David R. Cohen of Cleveland on the ground that his email “would lead any reasonable observer to question his impartiality.”

Law.com and Law360 (here and here) have coverage.

The pharmacy benefit managers seeking recusal are OptumRx, part of United HealthCare Services Inc., and Express Scripts Inc., owned by Cigna, Law.com reports. They are among a small group of defendants who have not settled in the opioid litigation.

In a Sept. 21 affidavit, Cohen said he has “never had any disqualifying personal bias or prejudice concerning any party” in any of the 30-plus different cases in which he has work as a special master since 2004. He explained how the mistake happened.

Cohen had reviewed a status report by pharmacy benefit managers and forwarded it to the federal judge overseeing the litigation without comment. He also intended to email himself the report with some “very brief” notes for later reference. Instead. he clicked on “reply all.”

The notes “were meant to serve as self-reminders of certain points and were not meant to be seen or read by anyone else,” Cohen said.

In the “reply all” email, sent Aug. 28, Cohen apparently referred to the pharmacy benefit managers as “PBMs” and plaintiffs as “Ps.”

In one section of the email at issue, Cohen 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’s affidavit said the “knew a lot” comment was partly intended to remind himself about a statement to a Senate committee made by an Express Scripts executive about data collection. Cohen said he was “echoing Express Script’s own observation that PBMs have unique, large collections of prescription opioid data.”

Cohen’s affidavit said 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 noted in the affidavit that his misdirected email also indicated that he would nonetheless allow the addition of third parties, and, “If that complicates the case, so be it.”

U.S. District Judge Dan Polster of the Northern District of Ohio, who is overseeing the opioid litigation, refused to disqualify Cohen in an Aug. 30 hearing. Polster said Cohen should decide whether to recuse, according to Law.com, which obtained a transcript.

“It’s not up to me,” Polster said.

OptumRX is represented by Alston & Bird, while Express Scripts is represented by Quinn Emanuel Urquhart & Sullivan.

Cohen offered just one comment when contacted by Law.com.

“I think the ‘left arrow’ for reply all and the ‘right arrow’ for forward are too close to each other on Outlook!” he said in an email to the publication.

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