Opioid Epidemic Ohio Public Nuisance Claim 6th Circuit

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, et al. 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, which, under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), speaks definitively on the meaning of Ohio law. But neither side in this appeal sought to certify that question to the Ohio Supreme Court. It was the Sixth Circuit itself that suggested certification might be the most appropriate path forward when it asked the parties to submit supplemental briefs on that issue. Consistent with not having sought certification themselves, both sides opposed certification in their supplemental briefs. The counties thought Ohio law was clear in their favor and that certification would add unnecessary expense and delay to the appellate process. Not surprisingly, the pharmaceutical chains thought exactly the same for their own position: Ohio law clearly favored them — not the counties — and so certification would unnecessarily delay things.

The Panel, it turns out, thought Ohio law was not quite as clear as the parties did and certified the question to the Ohio Supreme Court. For litigants who could see themselves requesting or opposing certification down the road, the Panel’s reasoning is worth understanding. After all, there’s a bit of a thumb on the scale against certification. The Sixth Circuit has noted that “federal courts generally will not trouble [their] sister state courts every time an arguably unsettled question of state law comes across [their] desks.” State Auto Prop. & Cas. Ins. Co. v. Hargis, 785 F.3d 189, 194 (6th Cir. 2015). The reason for that reluctance is in large part driven by a recognition that certification “entails more delay and expense than would an ordinary decision of the state question on the merits by the federal court.” Lehman Bros. v. Schein, 416 U.S. 386, 394 (1974) (Rehnquist, J., concurring). So when the Sixth Circuit certifies a question of state law sua sponte, against the will of the parties, that’s noteworthy.

Here, the Sixth Circuit thought certification made the most sense going forward for a few reasons. Whether Ohio law allows the counties’ public-nuisance claim turns on the meaning of two amendments to Ohio’s Product Liability Act. According to the pharmaceutical chains, those amendments abrogated the type of common-law public nuisance claim that the counties assert against the chains. The counties (and the District Court) disagree. In the counties’ view, the only public-nuisance claims that OPLA abrogated were ones that sought compensatory damages from product-liability-related harms. Thus, argue the counties, their claims are not preempted because they do not seek compensatory damages but rather equitable abatement, including both monetary and injunctive remedies.

The problem the Panel had in making an Erie prediction based on these arguments was not just that the Panel considered the issue novel and unsettled under Ohio law. The difficulty was that the parties’ arguments were all largely based on three Ohio Supreme Court decisions that predated the two statutory amendments at issue. In fact, the General Assembly had passed those amendments as a response to those decisions, and no subsequent Ohio Supreme Court decision has interpreted the meaning of those amendments. To make matters worse, “decisions by lower courts in Ohio are discordant on the amendments’ effects.” (Op. at 10.) The Panel was therefore not convinced that there was “a reasonably clear and principled course” to follow in lieu of certification. Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (internal quotation marks omitted). To decide the issue anyway was, in the Panel’s view, an invitation “to speculate on how the Supreme Court of Ohio would interpret the statute.” Planned Parenthood of Cincinnati Region v. Strickland, 531 F.3d 406, 408 (6th Cir. 2008).

Although the Court did not mention it, one cannot help but wonder whether the Panel’s decision was partially motivated by the weighty public interest involved in these cases. It was likely not lost on the Panel that people around the country are watching the opioid MDL closely. For some, the litigation promises to deliver long-overdue justice to victims of one of the great social problems of our time. For others, the cases push the limits on the types and extent of relief that our judicial system is capable of providing. The issue in this appeal, specifically, goes to the heart of the counties’ claim, with hundreds of millions of dollars riding on the question to boot. Here, that context was combined with the understandable impulse of a federal court, in dealing with an unsettled question of state law, “to seek answers from the only judicial body capable of providing them.” Lindenberg v. Jackson Nat’l Life Ins. Co., 919 F.3d 992, 1003 (6th Cir. 2019) (Nalbandian, J., statement on the denial of rehearing en banc). It seems quite possible that it was a combination of that impulse and context that led the Court to consider this appeal a worthy occasion for sua sponte state law certification.