Sua Sponte State Law Certification In Opioid MDL Appeal

• Published date: 21 September 2023
• Law Firm: Squire Patton Boggs LLP
• Author: Mr Shams Hirji

The Sixth Circuit issued a notable decision two days ago in one of the higher-profile appeals pending before it. The Panel's opinion was written by Judge Griffin and joined by Judge Batchelder and Judge Bloomekatz. In its decision, the Court took the uncommon step of sua sponte certifying a question of state law (here, Ohio law) to a state supreme supreme court (the Ohio Supreme Court). Why it did so reveals some key insights into how the Sixth Circuit thinks about state-law certification.

The appeal I'm referring to is Trumbull County, etal. v. Purdue Pharma L.P., et al. Nos. 22-3750/3751/3753/3841/3843/3844. It is an appeal from one of the many cases pending before Judge Polster in the Northern District of Ohio as part of the National Prescription Opiate Litigation. In this appeal, the defendant pharmaceutical chains are seeking to overturn a $650 million judgment entered against them on an Ohio absolute-public-nuisance claim asserted by two northeast-Ohio counties: Trumbull and Lake. Essentially, the counties assert that the pharmaceutical chains caused an absolute public nuisance under Ohio common law in "creat[ing], perpetuat[ing], and maintain[ing]" the opioid epidemic by illicitly filling prescriptions without adequate controls.

A ' perhaps the ' critical issue in the appeal is whether Ohio law allows such a public-nuisance claim. Who better to know the answer to that question than the Ohio Supreme Court...