The US District Court for the Northern District of Ohio is the home of a multidistrict litigation (MDL) aggregating more than 2,000 lawsuits from across the country in which state political subdivision plaintiffs have sued manufacturers, distributors and others they claim responsible for the nation’s opioid epidemic. The court has scheduled a consolidated seven-week bellwether trial for two of those subdivisions (Ohio’s Cuyahoga and Summit Counties) seeking $8 billion, to begin on October 21, 2019. On August 30, 2019, in the US Court of Appeals for the Sixth Circuit, the Attorney General of Ohio filed a petition for writ of mandamus on behalf of the State of Ohio. The petition states that if the consolidated trial proceeds on the theories pleaded in the complaints, it will include claims that belong to the State of Ohio and presents the following question:
Should a writ of mandamus issue to stop or delay the trial in order to protect Ohio’s sovereign right to litigate on behalf of its citizens as parens patriae?
In 2017, the Ohio Attorney General brought a civil action in a state court against several opioid manufacturers. In the petition the Ohio AG asserts that (i) the writ of mandamus is necessary to preclude a US district court from trying non-justiciable claims in a trial which, if unchecked, would cripple the federal dual sovereignty structure of the US; and (ii) only a state AG has parens patriae standing to prosecute claims vindicating generalized harm to a state’s inhabitants and that political subdivisions do not have parens patriae standing. The petition argues that the trial would fragment the State’s claims, pose a high risk of inconsistent verdicts, result in duplicative or overlapping damages and misallocate funds in the state. The AG further asserts that the counties advance claims that belong to the State in an effort to commandeer moneys that rightfully should be distributed across the state by Ohio.
Thirteen other states and the District of Columbia filed an amicus brief in support of the petition. At this writing, no hearing on the petition has been scheduled.