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Attorney General Jostling for Control of Bellwether Opioid MDL in Sixth Circuit

Office of the Attorney General
By Joseph Fawbush, Esq. on September 05, 2019 1:18 PM

Every part of the United States has been affected by the opioid crisis. The physical, financial and emotional harm suffered by dependent painkiller users are obvious. Counties and local governments incur costs as well: emergency transportation, community outreach and treatment, for example. Local governments have been leading the way in pursuing settlements against opioid makers and distributors, combining forces with private lawyers to first sue drug companies. Now, after two years a bellwether trial in federal district court in Ohio involving Cuyahoga and Summit counties (along with thousands of other counties, municipalities and tribes) is scheduled for October.

But state attorneys general have also filed their own lawsuits in state court. Many of these AGs have expressed doubts about the ability for the multidistrict litigation (MDL) in Ohio to represent a global class. Without state AG support, the defendant drug makers have less incentive to pursue a global settlement.

Money, Power, and Drugs

As the trial date approaches, Ohio’s attorney general is renewing his fight over who should have control. In late August, Ohio Attorney General Dave Yost filed a petition for a writ of mandamus with the 6th Circuit to enjoin the district court judge from proceeding with the litigation.

Ohio’s AG argues that only he has the authority to pursue such wide claims on behalf of the people of Ohio. However, some have expressed doubt about the attorney general’s position, as federal appellate courts typically have a high bar for issuing a mandamus and it isn’t clear if Ohio’s litigation is endangered from any potential settlement resulting from the MDL.

The High Cost of Opioids

Meanwhile, information continues to be revealed about the actions drug companies took to get patients these powerful painkillers. Last week the 6th Circuit denied a separate petition involving the same MDL to rehear en banc a request to keep prescription opioid data compiled by the Drug Enforcement Agency private.

Purdue Pharma is reportedly in talks for a global $12 billion settlement. These talks have included state AGs, as well as private litigants.

As opioid litigation ramps up, it is worth monitoring whether a global settlement becomes more likely.

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