First federal trial on opioid crisis will start after court downed efforts to stop it

The first federal trial on the opioid crisis will proceed starting on October 21 in Cleveland after two efforts to delay were denied by a federal appeals court on Thursday.

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The path is now cleared for the trial in Ohio's Summit and Cuyahoga counties - these are just two of the over 2,000 local governments and other entities that have sued companies that make, distribute and sell prescription opioids.

One effort to halt the federal trial came from Ohio Attorney General Dave Yost, who argued that it should not proceed because states - not local governments - possess the sole authority to file such lawsuits on behalf of their citizens.

Yost’s request had the support of several other states. He said that, since local governments are subdivisions of the state, the state’s claims should preempt theirs under a legal doctrine called “parens patriae.” Ohio is suing manufacturers and distributors in separate cases in state court.

The decision came from a three-judge panel from the Cincinnati-based Sixth U.S. Circuit Court of Appeals, which noted that trial preparations have been made already and that Ohio did not object when counties in the state started to make claims against the drug industry.

"In view of these circumstances, we decline to exercise our discretion to deploy 'one of the most potent weapons in the judicial arsenal,'" the judges wrote, paraphrasing previous case law.

“The 6th Circuit Court of Appeals did not say the state’s argument was incorrect or not valid, but that the issue should be addressed with the trial court,” Yost said in a statement. “At this time, we are reviewing our options.”

FILE - In a Nov. 6, 2018 file photo, Dave Yost speaks at the Ohio Republican Party event, in Columbus, Ohio.(AP Photo/Tony Dejak, File)

In its ruling, the Sixth Circuit granted a motion by Ohio and 12 other states. as well as the District of Columbia, to file friend-of-the-court briefs in the Cleveland case.

U.S. District Judge Court Dan Aaron Polster, who is handling the Cleveland cases, rejected an earlier attempt by Yost and other attorneys general to block some local governments from taking the lead in trying to negotiate a settlement.

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A ruling from a separate 6th Circuit panel rejected the argument from defendants that Polster should recuse himself from the trial because of prejudice against the defendants in comments in court and to reporters.

"We must take his statements in context,” the panel said. “Judge Polster equally placed blame on all parties, readily acknowledged that settlement efforts might not work, and acknowledged that both sides had compelling arguments.”

Opioids, a category of drugs that includes prescription versions and illegal drugs such as heroin — have been linked to more than 400,000 deaths in the U.S. since 2000. Ohio has been one of the hardest-hit states.

 “The 6th Circuit Court of Appeals did not say the state’s argument was incorrect or not valid, but that the issue should be addressed with the trial court"

- Ohio Attorney General Dave Yost

State and local governments are suing drug makers, distributors and sellers, claiming that corporate greed led them to put increasing amounts of prescription opioids into communities even as the number of overdoses spiked. As this happened, the companies allegedly disregarded their legal obligation to ensure that the pills were not diverted to non-medical uses.

Five drug companies have reached a settlement with the two counties in order to avoid the first federal trial over the nation's opioids crisis.

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On Oct. 1, Johnson & Johnson, and its Janssen Pharmaceutical subsidiary reached a settlement worth more than $20 million with Cuyahoga and Summit counties.

J&J did not admit liability in the settlement, which called for the company to pay $10 million to the counties and includes provisions for the company to reimburse the counties up to $5 million for legal expenses. The company will also contribute another $5.4 million to nonprofit organizations that deal with opioids.

On Sept. 8, Mallinckrodt PLC tentatively agreed to a settlement with the two Ohio counties worth $30 million. The company said it would pay $24 million in cash and provide $6 million worth of generic products - including those for addiction treatment – to the counties.

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The Associated Press contributed to this report.