When juror misconduct doesn’t matter: MDL edition of opioids
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(Reuters) – Last Thursday, an anonymous juror committed serious misconduct in the ongoing lawsuit by two Ohio counties, accusing retail pharmacies of exacerbating the opioid crisis. She gave her fellow jurors a printout from her personal computer that seemed to cast doubt on the testimony of a witness from Walgreens Boots Alliance Inc. the day before.
The juror’s offense was so serious that even senior Ohio counties attorney Mark Lanier of the Lanier law firm told US District Judge Dan Polster of Cleveland that it would be “appropriate” to say a canceled trial, three weeks after a scheduled date. six week procedure.
Lanier subsequently changed his mind, and on Sunday his customers filed a brief opposition against the briefs to quash the lawsuit by regional retailer Giant Eagle Inc and by the four defendants: Walmart Inc and CVS Pharmacy Inc, in addition from Walgreens and Giant Eagle. On Monday, Polster, who chairs the nation’s multidistrict opioid litigation, rejected motions to quash the trial in a court ruling.
How did Ohio’s Lake and Trumbull counties avoid a trial overturn that even their own senior attorney initially said was justified? Polster did not provide a written opinion, but based on his comments in court on Friday and the arguments in the writ opposing the counties to quashing the trial, the trial appears to have been saved as the judge acted swiftly to assess and mitigate the harm.
With outside jurors’ research in the news as Mexican drug lord Joaquin “El Chapo” Guzman appeals his conviction to the 2nd US Court of Appeals and the former West Virginia court Allen Loughry is asking the United States Supreme Court to decide whether he was entitled to a hearing. About a juror’s Twitter thread, it’s worth looking at the way Polster deals with kerfuffle.
The story began last Wednesday, when jurors asked a question during the testimony of a Walgreens executive: Did Walgreens provide the anti-overdose drug naloxone, or Narcan, free of charge to patients with prescriptions for? high dose opioids? The executive said Walgreens sometimes worked with local health departments to distribute Narcan for free, but otherwise patients could bill their insurance companies or pay themselves.
The exchange was brief, a few minutes over three days of testimony, but found an echo with a member of the jury. She later told the judge that she knew Narcan was available to the public at no cost and “felt very strongly that I didn’t want anyone to think he had to pay”.
On Thursday morning, the juror gave the other members of the jury a printout of a flyer describing a free Narcan distribution program in northern Ohio. She also told jurors who were already in the jury room that the anti-overdose drug is available free on request.
Polster discovered the incident during Friday’s lunch break. (It is not known from whom.) The judge called the accused juror for questioning. She admitted her misconduct and was fired with the consent of both parties. (She was lucky: I told you in July about a juror in New Jersey who was fined $ 11,000 for telling other jurors about his research online for the crest of the ‘unusual uniform of an ICE officer.)
Polster then questioned the rest of the jury about the incident. All other jurors acknowledged the assertion by the dismissed juror that Narcan was available for free. Most said they had received the leaflet describing the public distribution program. Several said they had at least taken a look at the document. A few testified that they were troubled by the apparent violation of the judge’s prohibition on outside research.
Defense lawyers told Polster on Friday that they were wronged by the juror’s disclosure of his unauthorized research. The counties had insisted on their theory that pharmacies were blinded by greed, they said, and the flyer played a role in that. The jury, they said, was irreparably tainted.
Lanier conceded that the outside evidence couldn’t hurt the plaintiffs – and likely gave weight to their lucrative claims. He told the judge that the juror’s misconduct affected all of the jury members, whether they realized it or not.
Polster sent the jury home for the day, but said he was inclined to continue the trial because “I can’t imagine a juror making up his mind as to whether anyone is suing Narcan.” He told both parties to consult their clients and get back to him.
The defendants’ briefs stressed that the taint of external evidence cannot be undone – and that the judge’s response only magnified the significance of the incident in the minds of jurors. They cited the 1982 6th Circuit ruling in In re Beverly Hills Fire Litigation, which overturned a judgment for fire victims after it was revealed that a juror improperly discussed the results of a home experiment on his own. cabling system. “No instruction can remedy this misconduct,” insisted the defendants.
The counties waived Lanier’s initial qualms in an email to the court on Saturday. Their Sunday brief explained that because the judge had investigated the incident, found no bias, and reminded jurors of their obligation to disregard outside information, there was no need to cancel the trial. . The facts, they said, were similar to a 2008 6th Circuit decision, USA v Wheaton, in which a juror used his personal laptop to answer a technical question that arose during of the jury’s deliberations. The 6th Circuit upheld the trial court’s ruling that the extrinsic evidence did not affect the jury.
Lanier said by email that the jurors’ own testimony dictated Polster’s decision. “The judge dismissed the request after calling in each juror and asking them if it affected their thinking or their neutrality,” he said. “They all remain impartial, and under the law, which strengthened the judge’s decision.”
Monday’s ruling may not be the last word on juror misconduct. Defendants’ attorneys – Weil, Gotshal & Manges and Marcus & Shapira for Giant Eagle; Bartlit Beck for Walgreens; Zuckerman Spaeder for CVS; and Jones Day for Walmart – did not respond to my email request, but their briefs warned that the allegations of a tainted jury could resurface at the end of the trial or on appeal.
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