(Reuters) - The 6th U.S. Circuit Court of Appeals ruled Thursday that two Ohio counties can proceed in a landmark bellwether trial accusing opioid manufacturers, distributors and sellers of sparking a drug abuse epidemic that the counties have spent billions of dollars to combat. Judges Alan Norris, Eugene Siler and Karen Moore denied a mandamus petition by Ohio Attorney General Dave Yost, who had asked the 6th Circuit to enjoin the Oct. 21 trial to protect the state’s sovereign power to bring claims on behalf of Ohio residents.
The 6th Circuit’s unsigned, three-page order said Ohio should not have resorted to the extraordinary remedy of a mandamus petition when it could have argued that point by intervening in the multidistrict opioids litigation in federal court in Cleveland, where more than 2,300 suits by local governments have been consolidated for pre-trial proceedings. In fact, the appeals court said, some defendants in the MDL made similar state-sovereignty arguments ahead of the scheduled bellwether trial. U.S. District Judge Dan Polster rejected them in an opinion issued in December 2018.
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Yet even after that decision, the 6th Circuit said, “Ohio made no attempt to intervene in the MDL proceeding for the limited purpose of raising the issues that it now asks us to decide by extraordinary means.” The Ohio AG has said the state did not formally intervene in the MDL because it did not want to be subject to federal jurisdiction for its opioid claims, which the AG brought in state court. But the 6th Circuit found the state’s citations to back that assertion were “not on point.”
The appeals court also pointed out that Ohio has actively tracked the MDL, even appearing as an amicus to oppose certification of a novel negotiating class of all local governments. (Judge Polster told the appeals court in a brief opposing mandamus that Ohio also participated in settlement negotiations conducted under his auspices.) The Ohio counties scheduled for the bellwether trial have conducted extensive discovery and have reached several settlements, the 6th Circuit said. At this late date, “we decline to exercise our discretion to deploy one of ‘the most potent weapons in the judicial arsenal,’” the court concluded.
The AG’s office said in an email statement that it is considering its options. The appeals court, it said, “did not say the state’s argument was incorrect or not valid, but that the issue should be addressed with the trial court.” In a filing late Thursday afternoon, the attorney general asked the 6th Circuit to issue an emergency stay of the bellwether trial while Ohio decides whether to file a petition for review at the U.S. Supreme Court.
I emailed MDL liaison counsel Peter Weinberger of Spangenberg Shibley & Liber, who signed the mandamus opposition brief by Summit and Cuyahoga counties, to ask about the possibility that Ohio will now seek an injunction from Judge Polster. He did not immediately reply. Nor did lead MDL plaintiffs counsel Joe Rice of Motley Rice and Paul Hanly of Simmons Hanly Conroy respond to a request for comment on the 6th Circuit mandamus decision.
It seems unlikely that Ohio would have much luck with state sovereignty arguments before Judge Polster. The judge, as I mentioned, already analyzed – and rejected – those arguments when they were offered by MDL defendants as a rationale for dismissing claims by Summit and Cuyahoga counties. The judge succinctly explained his reasoning in his response to the 6th Circuit in the Ohio AG’s mandamus case. Ohio, he said, may be correct that only the state – and not local governments – can sue to enforce residents’ rights. But Judge Polster said that Summit and Cuyahoga are not seeking recovery based on injuries to their residents. They’re suing over money they have spent to respond to the opioid crisis, the judge argued.
“That the relief sought by the plaintiff cities and counties for their own injuries, if granted, will also tend to collaterally benefit their residents, does not mean that plaintiffs seek to litigate on behalf of those residents,” Polster told the appeals court.
We may not have heard the last of the state sovereignty issue, though. Ohio had amicus backing for its mandamus petition from 14 states and the Chamber of Commerce. One of them might take the 6th Circuit’s advice and seek limited intervention in the MDL to press arguments that cities and counties can’t usurp states’ rights to bring public welfare claims on behalf of their citizens.
But the 6th Circuit seems determined to allow the bellwether trial to take place. It also seems determined to permit Judge Polster to preside over it; as my Reuters colleague Jon Stempel reported Thursday, the appeals court denied a motion by eight drug distributors and retailers to disqualify the trial judge. For the remaining opioid defendants, a reckoning is nigh.
NOTE: This story has been updated to include mention of Ohio's motion for an emergency stay of the bellwether trial date.