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Opioid Litigation to Proceed Over Ohio AG’s Objections

Oct. 10, 2019, 7:45 PM

The first case in a multidistrict opioid litigation will proceed on Oct. 21 in Ohio, despite efforts by that state’s attorney general to halt or delay the proceedings.

To delay the trial would be a “drastic and extraordinary remedy reserved for really extraordinary causes”—such as abuse of power by a judge, according to the order issued Oct. 10 by the U.S. Court of Appeals for the Sixth Circuit.

The court must not deploy one of “the most potent weapons in the judicial arsenal” by intervening in the case, according to judges Alan E. Norris, Eugene E. Siler, and Karen Nelson Moore.

Ohio Attorney General Dave Yost (R) had asked the Sixth Circuit to either dismiss the thousands of local governments’ claims or delay the trial because he believes that states should prosecute their own cases against massive drugmakers and distributors including Teva Pharmaceutical Industries Ltd. and Cardinal Health.

The court “did not say the state’s argument was incorrect or not valid, but that the issue should be addressed with the trial court,” Dave O’Neil, a spokesman for Yost, said in a statement. “At this time, we are reviewing our options.”

The case pits some of the nation’s largest companies in the drug supply chain against two Ohio counties seeking $8 billion over the industry’s role in the opioid crisis in those communities.

The consolidated cases brought by Cuyahoga and Summit counties will be the test case for the greater multidistrict litigation.

The outcome of the bellwether case, expected to last seven weeks, will determine whether the individual parties will negotiate some kind of settlement or continue fighting the patchwork of legal claims on behalf of cities, counties, and American Indian tribes.

Judge Dan Polster of the U.S. District Court for the Northern District of Ohio is hoping the trial will help attorneys settle claims on behalf of more than 34,000 local governments across the U.S.

He opposed the move to delay or dismiss the cases brought by local governments in a letter he wrote to the Sixth Circuit on the matter.

The attempt to stop the test trial was “untimely in the extreme,” based on a “faulty premise,” and would interfere with the way federal courts defer state issues to state courts, Polster wrote.

“For nearly two years, the State of Ohio remained silent while Ohio’s cities and counties conducted tens of millions of dollars worth of discovery, engaged in massive amounts of legal briefing, and even reached settlement agreements with some defendants,” Polster said. “Just because the new attorney general now feels differently than the former attorney general does not give the State of Ohio a new chance to upend the imminent bellwether trial.”

Judge Ouster Also Denied

In a separate order issued Oct. 10, the Sixth Circuit also denied a petition by 16 manufacturers, distributors, and pharmacies involved in the multidistrict litigation, all of whom sought Polster’s recusal.

The industry petition alleged that Polster has made statements in and out of court indicating he has prejudged the case and is “pursuing a personal mission.”

“Read in isolation, Judge Polster’s statements to the press and in court might call into question his impartiality,” according to the order. “But we must take his statements in context. Judge Polster equally placed blame on all parties, readily acknowledged that settlement efforts might not work, and acknowledged that both sides had compelling arguments.”

Ultimately, the court found that the industry did not provide evidence establishing that Polster had bias.

The cases are In re: State of Ohio, 6th Cir., No. 19-03827, order 10/10/19 and In re: AmerisourceBergen Drug Corp, et al, 6th Cir., No. 19-3935, order 10/10/19.

To contact the reporter on this story: Valerie Bauman in Washington at vbauman@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Randy Kubetin at rkubetin@bloomberglaw.com