Opioid MDL pharmacies object to vaccination order, citing older, liberal jury

Vials labelled "AstraZeneca, Pfizer - Biontech, Johnson&Johnson, Sputnik V coronavirus disease (COVID-19) vaccine" are seen in this illustration picture taken May 2, 2021. REUTERS/Dado Ruvic/Illustration/File Photo
  • Vaccine requirement could lead to unrepresentative jury, companies say
  • Bellwether trial on pharmacies' liability set for October

(Reuters) - Pharmacy operators have objected to a federal judge's order that jurors in an upcoming trial over the companies' role in the opioid epidemic be vaccinated against COVID-19, arguing that the requirement could unfairly skew the jury pool.

In a motion filed Monday, the pharmacy operators – Walgreen Co, CVS Pharmacy Inc, Rite Aid Corp, Walmart Inc and Giant Eagle Inc - asked U.S. District Judge Dan Polster in Cleveland, Ohio to reconsider his order, or to schedule a hearing on whether it is illegal.

The companies, represented respectively by lawyers including Kaspar Stoffelmayr of Bartlit Beck, Eric Delinsky of Zuckerman Spaeder, Kelly Moore of Morgan, Lewis & Bockius, Tina Tabacchi of Jones Day and Robert Barnes of Marcus & Shapira, pointed to differences in vaccination rates along gender, racial, age, political and educational lines.

A spokesman for the plaintiffs' attorneys, who include Mark Lanier of the Lanier Law Firm, Joseph Rice of Motley Rice, Paul Farrell of Farrell & Fuller and Jayne Conroy of Simmons Hanly Conroy, did not immediately respond to a request for comment.

Polster is presiding over a multidistrict litigation consolidating more than 3,300 claims by local and tribal governments accusing opioid manufacturers, distributors and pharmacies of fueling an addiction epidemic that has resulted in half a million deaths. He has scheduled a bellwether trial in October on claims brought by two Ohio counties against the pharmacy defendants.

The judge ordered that potential jurors in the trial be vaccinated as a safety measure earlier this month. The defendants said Monday that, 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 be 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.

They asked that if Polster declined to exercise discretion to vacate his earlier order, he hold a hearing on whether the vaccination requirement would violate the federal Jury Selection and Service Act, which mandates that juries be "selected at random from a fair cross section of the community."

Bellwether opioid trials are already underway in West Virginia and California, with another expected next week in New York.

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

For plaintiffs: Mark Lanier of the Lanier Law Firm, Joseph Rice of Motley Rice, Paul Farrell of Farrell & Fuller, and Jayne Conroy of Simmons Hanly Conroy

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

Read more:

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Big three drug distributors blame doctors, regulators in trial over opioid epidemic

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.