Opioids. Photo: David Smart/Shutterstock.com

A federal appeals court has ordered plaintiffs attorneys and the judge overseeing 2,000 lawsuits over the opioid crisis to respond to the state of Ohio's request to halt a critical trial next month.

On Wednesday, the U.S. Court of Appeals for the Sixth Circuit ordered lead plaintiffs attorneys and U.S. District Judge Dan Polster, who is overseeing the multidistrict litigation in the Northern District of Ohio, to respond to Ohio Attorney General Dave Yost's petition for writ of mandamus seeking to halt the Oct. 21 trial. Yost filed the petition to dismiss or delay the trial, arguing that Summit and Cuyahoga counties, the two plaintiffs, have no legal authority to pursue opioid claims on behalf of the state's residents.

"Ohio claims it has no other adequate means to obtain the relief it seeks because it cannot be forced to join or intervene in the MDL case," wrote the Sixth Circuit. "However, at the invitation of the district court, Ohio and other amici states are participating in the MDL settlement negotiations. Given this circumstance, we conclude that a response from the district court and the bellwether plaintiffs would be helpful."

The Sixth Circuit gave Polster and the plaintiffs attorneys seven days to respond.

Lead plaintiffs attorneys—Paul Farrell of Greene, Ketchum, Farrell, Bailey & Tweel in Huntington, West Virginia; Paul Hanly of Simmons Hanly Conroy in New York; and Joseph Rice of Motley Rice in Mount Pleasant, South Carolina—represent two Ohio counties in the trial, which is the first bellwether trial in the multidistrict litigation and the first opioid case to go before a jury. They issued a lengthy statement defending their right to go forward with the trial.

"These plaintiff communities have contributed countless hours and resources to build a case, lead the legal discovery process, and prepare for trial. During those two years, the Attorney General's office had more than ample opportunity to make its voice heard," they wrote. "While we agree with AG Yost's recent statements that resources should be spent at the local level, the best way to allocate these funds are directly through the communities who are working every day on recovery efforts."

They insisted that the Sixth Circuit not "short circuit a historic legal process that's been led by communities." They also noted that Ohio Gov. Mike DeWine, a Republican, had opposed "changing the litigation's structure" and that, for 100 years, the Ohio constitution gave "local communities the ability to govern themselves without unlawful interference from the state."

"Nothing the Attorney has presented in his writ or public statements have demonstrated sufficient evidence or cause to end this 100 year tradition nor derail the efforts of Summit and Cuyahoga counties to hold opioid companies accountable in a trial scheduled to begin in just one month from now," they wrote. "These counties have the power to pursue their claims and our response will reflect that the facts support this position."

The trial, scheduled to take place in Cleveland, is the first bellwether in the multidistrict litigation and follows a $572 million judgment for the state of 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.

Yost got amicus support from the District of Columbia and 14 states, including Connecticut and Texas, which argued that the trial jeopardized the ability of state attorneys general to reach global settlements with opioid companies. Also filing an amicus brief was the U.S. Chamber of Commerce, which raised concern about "the troubling surge of civil lawsuits against businesses brought by cities, counties, and other municipalities," who are represented by contingency lawyers.

On Wednesday, lawyers representing babies born addicted to opioids, called neonatal abstinence syndrome, insisted that Polster's focus on the government cases has left their clients with no due process.

Separately, Polster on Thursday denied a motion that the defendants brought to disqualify himself from the trial. He disagreed that his statements, both in court and in the media, show bias, among other things.

"Acknowledging the immense scope of the opioid crisis, and calling on all entities who have the power to ameliorate it to join me in doing so without delay, does not reflect any bias or prejudice toward any party to the litigation; and no reasonable observer would so conclude," he wrote. "My statements that early settlements are preferable to settlements only after protracted litigation do not carry any negative implication, and the seven moving defendants' drawing of a negative inference is not accurate."

In a statement following that order, lead plaintiffs' attorneys wrote, "We are gratified the Court has powerfully rejected this last-ditch effort to derail the upcoming trial, which cast unfair and undeserved aspersions on the Court."