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Opioid Update: Sixth Circuit Won’t Halt Bellwether Trial (and more)

Today the Sixth Circuit issued much-anticipated rulings rejecting bids by Ohio and the industry defendants to halt the upcoming opioid MDL bellwether trial. And as noted below, in other venues the opioid litigation has seen recent notable action from another key state plaintiff and Judge Polster.

Sixth Circuit denies “drastic and extraordinary” mandamus relief – 

The four-page order avoided ruling on Ohio’s meaty federalism argument that municipal litigation usurps its parens patriae authority to pursue claims for harms to its citizens’ health and welfare. Instead, it held Ohio failed to meet the demanding standard for mandamus relief.

Ohio only recently sought relief in the court of appeals (and didn’t seek to intervene in the MDL), the court noted, despite having notice of the impending trial since Judge Polster’s December 2018 ruling rejecting similar arguments made by the MDL defendants. The court was unpersuaded that limited intervention to assert these sovereignty rights would force Ohio to litigate in federal rather than state courts.

No recusal mandamus for Judge Polster –

Also this morning, Judges Clay, McKeague, and Donald rejected the MDL industry defendants’ request to force Judge Polster’s recusal based on statements made in and out of court, chiefly about the merits of settlement. Again citing the high standard for mandamus, the court of appeals acknowledged that “[r]ead in isolation, Judge Polster’s statements to the press and in court might call into question his impartiality. But we must take his statements in context.”

Given the breadth of Judge Polster’s comments, and the applicable abuse-of-discretion standard, “we can’t say we have a firm conviction” that his comments constituted “a clear error of judgment.” The “timing of Petitioners’ recusal motion,” the court added, “doesn’t help them,” given that Judge Polster spoke to the press beginning in early 2018.

The order did add, however, that “[j]udges should avoid public comment on the merits of cases pending or impending before them.” In light of that, the panel judges “do not encourage Judge Polster to continue these actions.”

Arizona drops out of Purdue settlement –

Just last month, 24 states and local governments struck an estimated $10 billion settlement with Purdue Pharma. On Tuesday, Arizona became the first state to drop out.

Citing the need for the Sackler family (Purdue’s owners) “to take responsibility for their role in the opioid crisis,” Arizona Attorney General Mark Brnovich plans to pursue the Sacklers for some of the $13 billion in profits they allegedly took out of the company. Notably, $13 billion would more than triple the amount previously cited in litigation.

Judge Polster clarifies negotiation class –

And in an order filed last Friday, Judge Polster clarified the effect of the negotiation class on class members litigating separate claims in state courts. He reiterated “that the Negotiation Class is not meant to affect any on-going litigation.” A municipality’s decision “to remain in the Negotiation Class,” therefore, “in no way curtails its individual litigation, including its ability to seek remand of its individual action to state court.”

Co-Authored by Barrett Block​.

© Copyright 2019 Squire Patton Boggs (US) LLP

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Benjamin Beaton Litigation Attorney Squire Patton Boggs Law Firm
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Benjamin Beaton is a litigator who handles complex appeals, trial proceedings and regulatory disputes. He has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk, and drafted dozens more in the federal courts of appeal and state supreme courts. In trial proceedings across the country, Ben has tried cases, briefed and argued dispositive motions, defended and examined high-profile witnesses and negotiated settlements. Outside the courtroom, Ben has drawn on his governmental experience to counsel a Fortune 100 CEO appearing before a US Senate...

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