Opioid MDL judge reverses order requiring COVID vaccines for jurors

3 minute read

The New York State Supreme Court, New York City, U.S. REUTERS/Andrew Kelly

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  • U.S. District Judge Dan Polster pulls back on automatically disqualifying unvaccinated jurors
  • Pharmacy chains argued requirement might skew jury pool's demographic makeup

(Reuters) - A federal judge on Wednesday reversed himself and said he would no longer automatically disqualify prospective jurors who are not vaccinated against COVID-19 from being seated in an upcoming trial over the role pharmacy chains played in the opioid epidemic.

U.S. District Judge Dan Polster in Cleveland said that the pharmacy operators Walgreens Boots Alliance, CVS Health, Walmart Inc, Rite Aid and Great Eagle Inc had made "good points" about how his earlier ruling could skew the jury pool.

Those companies in a motion on Monday argued the requirement could create a risk the jury pool did not respect a fair cross section of the community, given differences in vaccination rates along gender, racial, age, political and educational lines.

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The plaintiffs' lawyers -- Jayne Conroy of Simmons Hanly Conroy, Joseph Rice of Motley and Paul Farrell of Farrell & Fuller -- responded that while they agreed with Polster's concerns about COVID-19, they did not object to the companies' arguments.

While Polster in a brief order said he would rescind his vaccination requirement, he planned to "later discuss with counsel the extent to which they may inquire about vaccination status on the jury questionnaire and at voir dire."

Lawyers for the plaintiffs and representatives for the companies did not immediately respond to requests for comment.

Polster presides over more than 3,000 lawsuits consolidated in the federal multidistrict litigation by mostly local governments accusing drugmakers, distributors and pharmacy chains of fueling a deadly opioid addiction epidemic.

Opioids have resulted in the overdose deaths of nearly 500,000 people from 1999 to 2019 in the United States, according to U.S. Centers for Disease Control and Prevention.

Other cases are pending in state courts. Opioid-related trials are already underway in West Virginia involving distributors and in California involving drugmakers. Another trial with various companies is expected next week in New York.

Ahead of a so-called bellwether trial scheduled for October on claims brought by two Ohio counties against the pharmacy defendants, Polster on June 14 ordered that potential jurors be vaccinated as a safety measure.

In a motion filed on Monday, the pharmacy chains said given Ohio's rate of vaccination, 40% or more of the population would likely be excluded from the pool.

"Eliminating all those people would not only reduce the size of the eligible jury pool, it would also skew the pool in ways that would likely affect the parties' ability to pick a fair and impartial jury," the pharmacies said.

The defendants cited reports that women are more likely to get vaccinated than men, white and Asian residents more likely to be vaccinated than Black residents, and older residents more likely to be vaccinated than younger ones, as well as significant gaps in vaccination rates between different counties.

They also said liberals were more likely to be vaccinated than conservatives, as were people with higher income and education levels.

The case is In re National Prescription Opiate Litigation, U.S. District Court, Northern District of Ohio, No. 17-md-02804.

For plaintiffs: Jayne Conroy of Simmons Hanly Conroy, Joseph Rice of Motley, and Paul Farrell of Farrell & Fuller

For Walgreens: Kaspar Stoffelmayr of Bartlit Beck

For CVS: Eric Delinsky of Zuckerman Spaeder

For Rite Aid: Kelly Moore of Morgan, Lewis & Bockius

For Walmart: Tina Tabacchi of Jones Day

For Giant Eagle: Robert Barnes of Marcus & Shapira

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.