CLEVELAND (Legal Newsline) - The judge overseeing a landmark opioid lawsuit against the nation’s largest pharmacy chains refused to declare a mistrial after a juror performed her own research on a topic plaintiff lawyers raised in cross-examination and shared her results with the rest of the jury.
The juror’s foray outside the rules of evidence became known Friday, after U.S. District Judge Dan Aaron Polster was informed Juror No. 4 had handed out information about a free program to distribute Narcan, a drug to treat narcotic overdoses. The topic had come up earlier when lead plaintiff attorney Mark Lanier had pressed a Walgreens executive to acknowledge the company charged patients for the drug, which is frequently required to be dispensed along with high-dose opioids as a safety measure. Plaintiff lawyers have argued since the beginning of the trial that defendants CVS, Walgreens, Walmart and Giant Eagle placed profits before public safety and sought to earn money off the opioid crisis.
Friday afternoon, Judge Polster dismissed the juror and then asked lawyers for both sides whether he should declare a mistrial. The defendants said the case should end and plaintiff lawyers initially agreed.
“I'll be candid, Your Honor, I think that it affects this jury, I think it affects everybody whether they recognize it or not, and I think that the mistrial is appropriate,” said Lanier then.
After dismissing the juror, however, Judge Polster urged the parties to spend the weekend reconsidering. Already on senior status, he obliquely threatened to hand future trials to another judge. That could be a severe blow to plaintiffs who have benefited from his consistent rulings in their favor on matters including the core question of whether Ohio public nuisance law applies to the sale of legally prescribed narcotics.
By Sunday, the other plaintiff attorneys had changed their minds and urged the judge to allow the trial to continue. On Monday, Judge Polster agreed.
Defendants CVS, Walmart, Walgreens and Giant Eagle filed a motion for mistrial, saying “the jury is now incurably tainted.”
The controversy erupted after a juror asked the judge to clarify a question that plaintiff lawyers had raised about whether Walgreens charged patients for Narcan, also known as naloxone. Lanier then probed Tasha Polster, a Walgreens regional vice president, about the company’s policies. She said that in most cases, patients or their insurers purchased naloxone, although Walgreens sometimes cooperated in government-run programs to dispense it for free.
Juror No. 4 then conducted her own research and printed out flyers for a local government program that provides Narcan for free and distributed them to her fellow jurors. She described herself as a mental health professional and explained to the judge, “this feels bigger than this case. We’re talking about people’s lives. And I didn’t want people to think they had to pay for a Narcan kit.”
The defendants said the juror’s conduct merited a mistrial since plaintiff lawyers have built their case on allegations the pharmacy companies recklessly pushed their pharmacists to fill improper opioid prescriptions as a moneymaking strategy. Lanier acknowledged as much on Friday, saying the disclosure was “something in my favor because Walgreens is charging for something that’s commercially available for free.”
In a filing Sunday, however, plaintiff lawyers said the information was of no relevance to the case and should be ignored. The judge conducted voir dire questioning of the remaining jurors and determined they weren’t prejudiced, the plaintiffs said, and the issue of whether Walgreens charged for Narcan doesn’t have anything to do with whether the defendants created a public nuisance.
Judge Polster’s decision to reject the mistrial adds to the long list of rulings defendants can be expected to appeal should they lose this trial. The defendants argued the cases should be dismissed because Ohio public nuisance law doesn’t allow claims over the marketing and sale of products and have objected to numerous evidentiary rulings Polster has made, including allowing the plaintiffs to proceed with “aggregate proof” instead of identifying specific prescriptions they say pharmacists shouldn’t have filled.
On Friday, the judge expressed anger at Juror No. 4, saying “I've been a judge 22-some years. I've never had a juror, to my knowledge, do anything like this.”
He also made it clear he didn’t want to halt the trial.
“I want everyone to know, if there's a mistrial, I have no idea when I'm going to try this again,” he said. Later, he said “maybe I won't do it. We've got five others, five other bellwethers. I may just say all right, let those judges have at it.”
Lanier initially said he was worried about a decision being overturned on appeal.
“I am concerned about continuing a case where we know that the jury has been discussing something that is an issue in the case that has been questioned,” he said. "Before I spend another four weeks here with a case that’s going up (on appeal), I just want to tell the court that I think the mistrial is appropriate.”
Judge Polster then reiterated a point he has made since he was assigned to oversee federal multidistrict opioid litigation in 2018. From the beginning, he has told defendants they should negotiate a settlement instead of taking cases to trial.
“I'm sure everyone has a sense of the whole purpose of this was to, in my opinion, give a test case so everyone could see and to use it as a vehicle for some resolution, because clearly no one can try these cases for 10 years or 50 years or 100 years,” he said. “I've made rulings that, you know, no one liked, certainly half didn't, but that's how it goes.”
Plaintiff lawyers had already asked for a mistrial on other grounds, which Walmart resisted.