Ohio Attorney General Dave Yost, supported by a number of other states, had filed the first request to postpone or dismiss the federal case,. arguing the cities and counties suing drug companies have usurped state authority. Opening arguments in the trial are scheduled for Oct. 21.
But the appellate judges agreed with previous rulings that such a move would be a “drastic and extraordinary remedy” made only in “exceptional circumstances,” such as a judge’s clear abuse of power. Ohio did not meet that test, they said.
“The parties have conducted extensive discovery, filed numerous pleadings and, in some cases, reached settlements,” judges Alan E. Norris, Eugene E. Siler and Karen Nelson Moore wrote in a short decision. “In view of these circumstances, we decline to exercise our discretion to deploy one of ‘the most potent weapons in the judicial arsenal.’ ”
In a written statement, Yost’s spokesman, Dave O’Neil said the court “did not say the state’s argument was incorrect or not valid, but that the issue should be addressed with the trial court. At this time, we are reviewing our options.”
The plaintiffs in the case said they were encouraged by the decisions. “Our goal has always been to hold opioid makers and distributors accountable and find effective solutions — whether through negotiation or litigation — to secure the resources that local communities need to abate the opioid epidemic.
The upcoming trial in Cleveland pits two Ohio counties, Cuyahoga and Summit, against six drug companies in the first federal court test of whether drug companies should pay billions of dollars to help clean up the fallout from the nation’s worst drug crisis.
More than 2,500 other counties, cities, Native American tribes and other groups have sued dozens of companies over culpability for the epidemic, which has taken more than 400,000 lives in the past 20 years. Their lawsuits have been consolidated in the Cleveland courthouse of U.S. District Judge Dan Aaron Polster.
Polster selected the two counties’ lawsuits as a test case of how other jurisdictions might fare in their effort to secure payments from the drug industry.
“Judge Polster equally placed blame on all parties, readily acknowledged that settlement efforts might not work, and acknowledged that both sides had compelling arguments,” they wrote.
They added that “while we may not have chosen to make the statements, grant the interviews, or participate in the programs that form the basis for this petition,” those actions do not require the judge’s recusal.