Dan Polster, U.S. District Judge of the District Court for the Northern District of Ohio. Courtesy photo

Ohio Attorney General Dave Yost's attempt to derail the first trial over the opioid crisis is untimely and improper, according to the federal judge planned to oversee the Oct. 21 trial.

U.S. District Judge Dan Polster, of the Northern District of Ohio, made the remarks in a response, filed on Tuesday, to Yost's petition before the U.S. Court of Appeals for the Sixth Circuit to halt the trial between two Ohio counties and seven opioid companies. The judge, who also oversees the multidistrict litigation over the opioid crisis, now encompassing more than 2,000 lawsuits by cities, counties and other governments, said the attempt was "untimely in the extreme." Polster noted that both Yost and his predecessor, Mike DeWine, now Ohio's governor, had multiple opportunities to object to the trial plans. In a footnote, Polster noted that DeWine has publicly opposed Yost's petition.

"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 wrote. "Only after the bellwether plaintiffs reached settlement agreements with some defendants did Attorney General Yost file his petition."

This month's trial, scheduled to take place in Cleveland, is the first bellwether in the multidistrict litigation and follows a $572 million judgment for Oklahoma in the first opioid trial in the nation. The two counties are asking for $8 billion against seven defendants, including Johnson & Johnson, McKesson Corp. and AmerisourceBergen Drug Corp.

In his petition, Yost argued that the two plaintiffs, Ohio's Cuyahoga and Summit counties, had no legal authority to pursue claims over the opioid crisis. The District of Columbia and 14 states, including Connecticut and Texas, and the U.S. Chamber of Commerce filed amicus briefs supporting Yost.

Last week, the Sixth Circuit ordered Polster, and the plaintiffs attorneys in the trial, to respond to the petition.

Polster, in his response, said the attorney general's writ of mandamus hinged on a "faulty premise" that only the state could sue on behalf of Ohio's residents.

That may be true, the judge wrote, but "the bellwether plaintiffs have consistently stated, and I have likewise repeatedly concluded, that the city and county plaintiffs do not seek recovery based on injuries to individual residents; rather the plaintiffs seek recovery for direct injuries suffered by the plaintiffs themselves."

Further, he added, the petition does not challenge his rulings but makes broad policy positions that are more appropriate in state court.

"The State of Ohio effectively asks the Sixth Circuit to throw out roughly 2,000 cases on the eve of the first bellwether trial," he wrote. "Purportedly for the sake of 'vindicating federalism,' the State of Ohio asks the Sixth Circuit to determine the substantive relationships, not just between Ohio and its cities and counties, but also of all other states and their cities and counties, as well—a task which, under those same principles of federalism, individual state courts are better suited to address."

In a footnote, Polster referenced a Cleveland.com article about Yost supporting a bill that would give him exclusive control over the opioid lawsuits.

"If Attorney General Yost believes he needs to change Ohio law to give his office control over these cases, he cannot credibly argue that I committed legal error by allowing them to go forward under the current laws," Polster wrote.