CLEVELAND (Legal Newsline) Walmart, CVS and Walgreens moved for reversal or a new trial over opioid claims, saying the trial that resulted in a historic public nuisance verdict against them was “plagued with errors” including jury instructions “designed to manufacture a verdict” for the plaintiffs.
Leveling their criticism directly at U.S. District Judge Dan Aaron Polster, the operators of some of the nation’s largest pharmacy chains said they were on the losing side of numerous rulings that favored Lake and Trumbull counties, representatives for thousands more cities and counties that private lawyers recruited as plaintiffs in opioid litigation.
At his first public hearing after being assigned to oversee federal multidistrict opioid litigation, Judge Polster made it clear he wanted the defendants to pay money to settle the lawsuits against them. He later said a trial “will accomplish zero” and when the pharmacies insisted on it anyway, threatened them with bankruptcy.
When the pharmacies refused to settle Judge Polster ordered a bellwether trial in his own judicial district, a common strategy in MDLs used to test plaintiff theories in front of a jury and establish values for future settlements of cases nationwide. The defendants complained about the judge’s pretrial rulings, however, which allowed lawyers for Lake and Trumbull counties to argue the case based on “aggregate proof” without presenting any evidence the pharmacies actually filled improper prescriptions.
During the trial, the judge barred as hearsay evidence that state officials prohibited pharmacies from making blanket orders not to fill prescriptions from certain doctors, while allowing plaintiff witnesses to recite the contents of internal emails and tell the jury about unproven Justice Department allegations against Walmart. The jury ruled for the plaintiffs on Nov. 23.
“From the beginning of this trial until the jury’s verdict, this court erred in ways making it easier for plaintiffs to prove their case and harder for defendants to fairly defend themselves,” the companies said.
The companies’ court filings were clearly aimed at the Sixth Circuit Court of Appeals and not Judge Polster, who has consistently ruled against them even as the Sixth Circuit has overruled some of his decisions.
They filled their filings with citations to Sixth Circuit opinions, including a lengthy discussion of a procedural error they say Judge Polster made when he ordered Brad Nelson, a former Walmart executive living in Arkansas, to testify live via video after earlier threatening to force Walmart to send its corporate jet to pick him up. While he oversees the national opioid MDL for pretrial proceedings, Judge Polster only has trial jurisdiction in Ohio. Sixth Circuit precedent holds a judge can’t order former employees to testify at trials more than 100 miles from their home, the companies said.
When Walmart cited this rule in court, the judge responded: “You want to test me, test me. If I get any pushback, trust me, I’ll just have him here, okay?”
Things got similarly testy when Judge Polster allowed plaintiff lawyers led by Mark Lanier introduce evidence that the defendants considered inadmissible hearsay or irrelevant and prejudicial. The judge initially barred lawyers from discussing the Justice Department’s civil complaint against Walmart, for example, but then reversed when plaintiff lawyers argued a Walmart executive had opened the door by saying the company’s “business culture” was “based in a foundation of integrity.”
“You want to put your corporate culture and integrity in play, then I’ll let the plaintiffs bring out whatever they want,” the judge said at sidebar. When they continued to protest, he said, “well, you started it.”
The jury instructions also were unfair, defendants said, because they suggested jurors could find them liable for an “oversupply” or “diversion” of opioids without the evidence required under Ohio’s public nuisance law.
“The verdict form asked the jury off-point questions designed to manufacture a verdict for plaintiffs,” the defendants said.
In their motion for a judgment notwithstanding the jury verdict, the companies said no reasonable jury could find them liable for causing a public nuisance based on the evidence presented. At trial, Lanier worked tirelessly to convince jurors the companies had a duty under the Controlled Substances Act not only to block improper prescriptions from being filled, but to document how they resolved every so-called “red flag” identified by plaintiff experts as indicating a suspicious prescription.
Under the plaintiffs’ theory of the law, they had to prove that pharmacists knowingly broke the law. But the term “red flag” appears nowhere in the federal statutes and jurors were never presented any evidence a pharmacist intentionally filled an improper prescription. The most plaintiff lawyers did was argue that they met the “intentional” prong by proving pharmacists intended to fill prescriptions, which was their job.
Walmart also argued reasonable jurors could not find the company to be a “substantial factor” contributing to the public nuisance in the two counties, as required as a matter of law, because its stores only had 3.2% market share for prescription opioids in the two counties. The company criticized Judge Polster for allowing Lanier to tell jurors, without evidence, that one of the defendants’ stores was “one of the top volume stores for oxy in the entire nation.” In fact, independent pharmacies that the judge refused to bring into the trial as defendants held 17% of the opioid market in the two counties.
Finally, the defendants repeated their argument the case should be retried because a juror brought in her own research about Narcan, a drug used to reverse drug overdoses, and shared it with other jurors. Lanier at the time urged the judge to declare a mistrial but after Judge Polster said he didn’t know when he would try another bellwether or might refer the cases to another judge, the plaintiff lawyers reversed course and urged the trial to continue.