The Sixth Circuit activity continues to escalate as the MDL bellwether trial date approaches. In just the last week, since the Court of Appeals’ rare order requesting a response to Ohio’s mandamus petition, we’ve seen:

  • Judge Polster respondenergetically—to Ohio’s mandamus petition, one day sooner than the deadline provided in the Court of Appeal’s order;
  • Defendant manufacturers, retailers, and wholesalers file an interlocutory appeal of Judge Polster’s novel settlement-class certification order;
  • Many of the same defendants file their own (expedited) petition for mandamus based on Judge Polster’s denial of their recusal motion; and
  • J&J settle with the 2 bellwether plaintiffs (Cuyahoga and Summit Counties) for $20 million—meaning brand-name manufacturers are now absent from the trial. (The remaining bellwether defendants are the three national drug wholesalers, plus a retail pharmacy, generic manufacturer, and small Ohio distributor.)

Judge Polster’s response is worth pausing a beat, if only because trial judges so rarely get to overtly put on their advocate’s hat and respond directly to adversarial arguments. His 3-page letter offered three arguments that mandamus (always unusual) was “even more extraordinary in this instance”:

  1. “extreme” untimeliness relative to the Nov. 2017 complaint and Dec. 2018 standing ruling (with a nod, and a hyperlink, to different tacks taken by then-AG/now-Gov. Mike DeWine and then-Auditor/now-AG Dave Yost);
  2. a “faulty premise” of the AG’s positions that citizens’ interests, rather than “direct injuries suffered by the [counties] themselves,” was the basis for standing (emphasis in original!); and
  3. the primacy of state courts’ interpretation of state-law limits on municipal authority that the AG invokes—which, according to Judge Polster, should be vindicated in state rather than federal court.

With this many irons in the fire, we are sure to hear more soon from the Sixth Circuit. Stay tuned.