Opioid trial jurors ask witnesses questions as judiciary reviews practice

People are inoculated against the coronavirus disease (COVID-19) at a Walgreens store in Chicago
A Walgreens store is seen in Chicago, Illinois, U.S. February 11, 2021. REUTERS/Eileen T. Meslar

(Reuters) - In a trial over whether three pharmacy chains fueled the U.S. opioid epidemic, a Walgreens executive was asked how the company documented red flags of potential pain pill misuse and whether it offered the overdose antidote naloxone for free.

It wasn't an opposing lawyer who asked those questions. Nor the judge. Rather, it was jurors in the federal court in Cleveland, Ohio, who posed those questions in the first trial the pharmacies have faced over the opioid epidemic.

Scheduled to wrap-up on Monday, the trial is among the highest-profile instances of a federal court letting jurors pose questions to witnesses, a practice that could become commonplace thanks to a rule change the federal judiciary is debating.

Members of the Advisory Committee on Evidence Rules expressed support at a meeting last week for a draft rule guiding judges on allowing jurors to ask questions.

That rule would let jurors ask questions in writing, with the parties allowed to object and the judge allowed a rewrite before they are posed to witnesses.

Questioning by jurors has long existed, though the practice has fallen into disuse.

While some courts have warned about jurors asking prejudicial questions or transforming into advocates for one side mid-trial, supporters say allowing questions, with safeguards, could lead to more informed, engaged juries.

The American Bar Association in 2005 endorsed the practice in civil cases as a way to enhance juror participation.

The draft rule is neutral on whether judges should actually let juries ask questions, but committee chair Patrick Schiltz, a federal judge from Minnesota, said at the Nov. 5 meeting "there's no denying it will result in more jury questioning."

All federal appeals courts have ruled on the practice, with varying degrees of approval, with some warning it risks turning jurors into advocates and compromising their neutrality.

In Cleveland, U.S. District Judge Dan Polster, who oversees thousands of opioid lawsuits, has let jurors submit written questions in the current trial by two Ohio counties against Walgreens Boots Alliance Inc, CVS Health Corp and Walmart Inc.

The questions have addressed some core claims in the case, where the counties accused the pharmacies of having failed to prevent opioid pills from flooding their communities or identify "red flags" of misuse. The companies deny wrongdoing.

During testimony on Oct. 20, for example, a juror asked Tasha Polster, Walgreens' head of pharmacy integrity, about the apparent lack of a standard means to document red flags. (She is not related to the judge.)

"Doesn't this make it more difficult for the pharmacists to be able to do their due diligence in a timely manner, especially if notes or prior notes in the system can or are deleted due to space limitations?" the juror asked.

Tasha Polster responded that a standardized process "makes sense," but pharmacists need to check multiple places in the computer system for different reasons.

The juror questions have been read aloud by the lawyers after they finished posing their own questions to witnesses. The defendants have not been objecting, the plaintiffs' lawyer Frank Gallucci of Plevin & Gallucci said.

A lawyer for Walgreens, Kaspar Stoffelmayr of Bartlit Beck, had no comment.

At the advisory committee meeting, Schiltz said he has resisted letting jurors ask questions because the 8th U.S. Circuit Court of Appeals disfavors the practice but might allow it if the draft rule were adopted.

A May 2022 vote is expected on whether the U.S. Judicial Conference's chief rules committee should consider adopting the rule.

"My hope is that this will give me a shelter that I can use," Schiltz said.

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

For the plaintiffs: W. Mark Lanier of The Lanier Law Firm, Frank Gallucci of Plevin & Gallucci, Hunter Shkolnik and Salvatore Badala of Napoli Shkolnik, Jayne Conroy of Simmons Hanly Conroy, Joseph Rice of Motley Rice and Paul Farrell of Farrell & Fuller.

For CVS: Eric Delinsky and Alexandra Miller of Zuckerman Spaeder.

For Walgreens: Kaspar Stoffelmayr, Brian Swanson, Katherine Swift, Alex Harris, Sharon Desh and Sten Jernudd of Bartlit Beck.

For Walmart: John Majoras, Benjamin Mizer, Tina Tabacchi and Tara Fumerton of Jones Day.

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Thomson Reuters

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