No luck for Ohio AG in attempt to halt first federal opioid trial

By John O’Brien

CINCINNATI (Legal Newsline) – A federal appeals court has turned away an attempt to halt the first federal opioid trial by ruling Thursday against Ohio Attorney General Dave Yost, who is concerned cities and counties in his state have usurped his authority.

The U.S. Court of Appeals for the Sixth Circuit complained that Yost waited too long to make his move, noting he didn’t object to the lawsuits filed by Cuyahoga and Summit counties when they were first transferred to the federal multidistrict litigation in Cleveland.

In August, Yost wrote to the Sixth Circuit that he had the sole authority to assert the claims also being made by the two counties, who are scheduled to be the plaintiffs in a bellwether trial beginning later this month.

“We note, however, that on Dec. 19, 2018, the district court entered an opinion and order rejecting a similar argument made by the MDL defendants,” the Sixth Circuit wrote.

“Despite having notice that the counties’ claims would proceed to trial, 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 federal MDL holds the lawsuits of nearly 2,000 cities, counties and other entities who are blaming opioid makers and distributors for the nation’s addiction crisis. The MDL is overseen by Judge Dan Polster, who has urged the parties to reach a global settlement of claims.

But lawsuits by states are heard in respective state courts. And Yost and colleagues who backed his effort say they outrank the cities and counties when it comes to representing their populations.

So Yost filed the writ of mandamus with the Sixth Circuit to attempt to halt or dismiss the bellwether trial, scheduled to begin Oct. 21 despite other possible reasons for delay, like accusations of bias against Polster.

Yost wrote the trial “would fragment the State’s claims, pose a high risk of inconsistent verdicts, result in duplicative or overlapping damages and misallocate funds in the state.”

“The counties advance claims that belong to the State in an effort to commandeer moneys that rightfully should be distributed across the state by Ohio,” the AG’s filing states. “Reworking the internal structure of a State is not the role of the Federal Courts.”

Cities, counties, states and other entities are led by the same firms that collected billions of dollars in fees from the tobacco settlement of the 1990s and are hoping for a similar result from the opioid litigation.

Yost said the cities’ and counties’ lawsuits threaten “Ohio’s sovereign interest in vindicating its citizens’ rights – all of its citizens’ rights – against the various defendants who fueled the opioid epidemic in Ohio.”

“The scheduled bellwether trial undermines all this because it lets political subdivisions act as representatives of the people’s interests—and thereby appropriate remedies that belong to the State,” Yost said.

State lawsuits have so far had mixed results. Oklahoma Attorney General Hunter collected settlements, including a $270 million agreement with now-bankrupt Purdue Pharma whose funds were mostly steered to a research project at his alma mater and private lawyers working on a contingency fee.

He also won a trial against Johnson & Johnson, which was ordered to pay $572 million despite its relatively small share of the opioid market.

But state judges in North Dakota and Connecticut have dismissed state AG cases before they could reach trial.

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.