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July 14, 2020

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Opioid Update: 6th Circuit Orders Mandamus Response from Judge Polster, Bellwether Counties

If anyone doubted the Sixth Circuit was paying close attention to the opioid MDL, that’s been put to rest.

Today, in a short order issued by Circuit Clerk Deborah S. Hunt, the Sixth Circuit requested a response to the Ohio AG’s mandamus petition, supported by many states and the U.S. Chamber, seeking to enjoin the upcoming bellwether trial. The Court ordered “that Cuyahoga and Summit Counties”–the plaintiffs in the bellwether trial–“file either joint or separate answers.” The order also ordered “that the MDL judge”–Judge Polster, whom several opioid defendants recently asked to recuse–“address this mandamus petition within 7 days.”

The order tracks Federal Rule of Appellate Procedure 21(b)(4), which gives courts of appeals the option of inviting or ordering “the trial court judge to address the petition” for mandamus. Suffice to say that appellate courts don’t issues these orders to trial courts every day.

Regardless of whether the court actually enjoins the trial–which would be a rare occurrence indeed–rest assured that the Sixth Circuit judges are carefully watching this MDL. Stay tuned.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 269


About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH

Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...