Judge Dan Polster of the U.S. District Court for the Northern District of Ohio. (Courtesy photo)
A federal judge on Monday upheld the nation's first jury verdict involving the opioid crisis, insisting that his decision to prohibit unvaccinated jurors and finding of no juror misconduct did not result in an unfair trial against three pharmacies.
In a pair of rulings, District Judge Dan Polster concluded there was substantial evidence for a jury to conclude that CVS, Walmart and Walgreen's contributed to the epidemic, despite their claims that the trial was "plagued with errors." A federal jury in Cleveland found all three liable in a Nov. 23 verdict, following a trial in which jurors were asked to decide whether pharmacies were liable for overdoses and deaths in two Ohio counties.
Polster, who initially backed down from a decision to prohibit unvaccinated jurors from the trial, ended up excusing three of them during voir dire. The pharmacies had argued that decision prohibited them from having a "fair cross-section of the community," but Polster said it demonstrated his authority under the U.S. Jury Selection and Service Act to excuse jurors who were "likely to disrupt the proceedings."
"The court need only to look at the pretrial proceedings to support the conclusion that unvaccinated potential jurors were likely to be disruptive—one unvaccinated venire-person had to be excused when he contracted COVID-19 just days before jury selection began, and another unvaccinated venire-person was excused after he was cleared for cause during voir dire because his wife contracted COVID-19," he wrote. "Had either of these individuals been seated on the jury when their COVID-19 exposure occurred, there is no doubt that trial would have been disrupted to allow all the jurors to isolate. Indeed, even defendants are tellingly silent on the issue of potential disruption."
He also disputed claims that unvaccinated jurors were a "distinctive group," given that they have a diverse mix of beliefs.
Polster also denied the pharmacies' argument that a juror who brought her own Internet research materials to the courtroom necessitated a mistrial. The research was related to testimony happening at the time. Polster interviewed all members of the jury, ultimately dismissing the problem juror from the case, but concluded that the other jurors largely ignored the materials.
The pharmacies also raised misconduct claims involving statements that plaintiff attorney W. Mark Lanier of The Lanier Law Firm in Houston made during his closing argument. Among other things, Lanier told jurors the case had "national ramifications."
Additional issues included jury instructions, improper evidence, hearsay and references to the U.S. Department of Justice's opioid case against Walmart, all of which Polster denied.
The plaintiffs' executive committee leading the multidistrict litigation—Jayne Conroy, of Simmons Hanly Conroy; Paul Farrell, of Farrell & Fuller; and Joe Rice, of Motley Rice—joined with Lanier and his trial co-lead attorneys Frank Gallucci, of Plevin & Gallucci Co., and Peter Weinberger, of Spangenberg Shibley & Liber, in praising Polster's orders.
"This order reaffirms what we already knew to be true," they wrote. "The trial process that found the defendants responsible for fueling the opioid epidemic was fair, transparent, and evidence-based. We agree with Judge Polster's findings and appreciate his continued leadership on opioid litigation matters."
Walgreen Co. spokesman Fraser Engerman declined to comment, and lawyers for Walmart and CVS did not respond to requests for comment.
The verdict was the first in the nation in which a jury was asked to decide the liability of corporate defendants over the opioid crisis. Polster has scheduled a damages phase for the trial to begin May 9. The Ohio counties have asked for $1.1 billion and $1.3 billion.
In addition to the new trial motion, the pharmacies brought motions for judgment as a matter of law.
In a separate order on Monday, Polster rejected those arguments, which included challenges of public nuisance law based on a Nov. 9 ruling from the Oklahoma Supreme Court, which reversed a $465 million judgment against Johnson & Johnson's Janssen Pharmaceuticals following a bench trial in 2018. In that decision, the court held that Oklahoma Attorney General's Office "went too far" in extending Oklahoma's public nuisance law to include the marketing and sale of a company's products.
But Ohio's public nuisance law isn't the same, Polster wrote.
"Put simply," Polster wrote, "Oklahoma law is different and inapplicable."
Amanda Bronstad
Amanda Bronstad is the ALM staff reporter covering class actions and mass torts nationwide. She writes the email dispatch Law.com Class Actions: Critical Mass. She is based in Los Angeles.