Bloomberg Law
Oct. 2, 2019, 5:05 PM

Quest for Delay of Opioid Trial Has ‘Faulty Premise,’ Judge Says

Alex Ebert
Alex Ebert
Staff Correspondent

A federal judge presiding over the country’s largest opioid lawsuit is asking an appeals court not to dismiss or delay a landmark trial despite calls from states to let them take the helm in the charge against drugmakers, distributors, and pharmacies.

“The State of Ohio effectively asks the Sixth Circuit to throw out roughly 2,000 cases on the eve of the first bellwether trial,” Judge Dan Polster, of the U.S. District Court for the Northern District of Ohio, said in a letter to the appeals court.

The first trial in the sprawling opioid multidistrict litigation is set to kick off on Oct. 21 in Cleveland. The case pits some of the nation’s largest companies against two Ohio counties seeking $8 billion. Polster is hoping the trial, expected to last seven weeks, will help attorneys settle claims on behalf of more than 34,000 local governments across the U.S.

The appeals court had asked Polster for his views on a petition filed Sept. 4 by Ohio’s attorney general, Dave Yost (R). Yost asked the Sixth Circuit to either dismiss the thousands of local governments’ claims or delay the trial. The attorney general supports the view that states should prosecute their own cases against massive drugmakers like Johnson & Johnson and distributors like Cardinal Health.

‘Faulty Premise’

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, according to Polster’s letter.

“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.”

Yost has raised concerns that claims brought by local governments could interfere with states’ ability to recover on behalf of their citizens. Polster said that shouldn’t be the case because local governments are seeking restitution for money they have paid and will pay to combat the opioid addiction crisis, which has killed roughly 400,000 people across the country.

MDL Process Questioned

Yost isn’t alone. More than a dozen other attorneys general and the U.S. Chamber of Commerce have sided with his argument that allowing local governments to pursue their cases will interfere with states’ ability to bring their own case or reach a “universal settlement” in the opioid addiction litigation.

“It’s hard to negotiate with 50 states. It’s a lot harder to negotiate with 50 states and 2,000 communities in the multidistrict litigation,” said Christopher J. Walker, Ohio State Moritz College of Law professor and attorney for the U.S. Chamber of Commerce. “The more realistic approach is that the MDL is paused, halted.”

The Chamber’s Institute for Legal Reform released a white paper in April raising concerns about the multidistrict litigation process. The Chamber says multi-district litigation rules slow down the appeal of decisions in which judges refuse to dismiss plaintiffs’ claims. That adds pressure for business defendants to “settle the hundreds of thousands of claims in an MDL proceeding, rather than incur massive additional litigation expenses and roll the dice on costly trials.”

A committee of attorneys representing the local governments is expected to file its own letter supporting the trial. The attorneys issued a statement saying they will continue their preparation for the Oct. 21 trial.

Yost’s office declined to comment.

The case is In re: State of Ohio, 6th Cir., No. 19-3827, Polster letter filed 10/1/19.

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at