When juror misconduct doesn’t matter: opioid MDL edition

6 minute read

REUTERS/Bryan Woolston

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(Reuters) - Last Thursday, an unnamed juror committed grave misconduct in the ongoing bellwether trial by two Ohio counties accusing retail pharmacies of exacerbating the opioid crisis. She handed fellow jurors a printout from her home computer that seemed to cast doubt on the previous day’s testimony by a witness from Walgreens Boots Alliance Inc.

The juror’s infraction was so serious that even the Ohio counties’ lead trial lawyer, Mark Lanier of the Lanier Law Firm, told U.S. District Judge Dan Polster of Cleveland that it would be “appropriate” to declare a mistrial, three weeks in to a scheduled six-week proceeding.

Lanier subsequently changed his mind, and, on Sunday, his clients filed a brief opposing mistrial briefs by the regional retailer Giant Eagle Inc and by all four defendants: Walmart Inc and CVS Pharmacy Inc, in addition to Walgreens and Giant Eagle. On Monday, Polster, who is presiding over the nationwide opioid multidistrict litigation, denied the mistrial motions in a ruling from the bench.

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How did Ohio's Lake and Trumbull Counties avert a mistrial that even their own lead trial counsel initially said was warranted? Polster didn’t issue a written opinion, but based on his comments in court on Friday and on arguments in the counties’ brief opposing mistrial, the trial seems to have been saved because the judge acted quickly to assess and mitigate the harm.

With jurors’ outside research in the news as Mexican druglord Joaquin "El Chapo" Guzman appeals his conviction at the 2nd U.S. Circuit Court of Appeals and West Virginia ex-justice Allen Loughry asks the U.S. Supreme Court to decide if he was entitled to a hearing about a juror’s Twitter feed, it’s worth looking at Polster’s handling of the kerfuffle.

The story began last Wednesday, when jurors submitted a question during the testimony of a Walgreens executive: Did Walgreens supply the anti-overdose medication naloxone, or Narcan, at no charge to patients with high-dose opioid prescriptions? The exec said Walgreens sometimes worked with local health departments to distribute Narcan for free, but otherwise patients could bill their insurance companies or pay for it themselves.

The exchange was brief, just a couple of minutes over three days of testimony, but resonated with one member of the jury. She later told the judge she knew Narcan was publicly available at no cost and “felt very strongly that I didn’t want anyone to think that they had to pay.”

On Thursday morning, the juror handed fellow jury members a printout of a flier describing a free Narcan distribution program in Northern Ohio. She also told jurors who were already in the jury room that the anti-overdose drug is available free for the asking.

Polster found out about the incident during Friday’s lunch recess. (It’s not clear from whom.) The judge called the offending juror in for questioning. She admitted her misconduct and was dismissed with the consent of both sides. (She was lucky: I told you in July about a New Jersey juror who was fined $11,000 for telling fellow jurors about his online research into an ICE officer’s unusual uniform patch.)

Polster then questioned the rest of the jury about the incident. All of the other jurors acknowledged the dismissed juror’s assertion that Narcan was available for free. Most said they had received the flier describing the public distribution program. Several said they had at least glanced at the handout. A few testified that they were disturbed about the apparent breach of the judge’s prohibition on outside research.

Defense lawyers told Polster on Friday that they’d been prejudiced by the juror’s disclosure of her unauthorized research. The counties had harped on their theory that the pharmacies were blinded by greed, they said, and the flier played into it. The jury, they said was irreparably tainted.

Lanier conceded that the outside evidence couldn’t hurt plaintiffs – and likely lent weight to their profit-motive claims. He told the judge that the juror’s misconduct had affected everyone on the jury, whether they realized it or not.

Polster sent the jury home for the day but said he was inclined to keep the trial going because “I can’t imagine that any juror is going to make his or her mind up over whether anyone charges for Narcan.” He told both sides to consult their clients and get back to him.

The defendants’ briefs emphasized that the taint of outside evidence can’t be undone – and that the judge’s response only magnified the significance of the incident in jurors’ minds. They cited the 6th Circuit’s 1982 decision in In re Beverly Hills Fire Litigation, which vacated a judgment for fire victims after the revelation that a juror had improperly discussed the results of a home experiment on his own wiring system. “No instruction can cure this misconduct,” defendants insisted.

The counties renounced Lanier’s initial qualms in an email to the court on Saturday. Their brief on Sunday explained that because the judge had investigated the incident, found no prejudice and reminded jurors of their obligation to disregard outside information, there was no need for a mistrial. The facts, they said, were similar to those in a 2008 6th Circuit ruling, United States v. Wheaton, in which a juror used his personal laptop to answer a technical question that arose during jury deliberations. The 6th Circuit upheld the trial court’s ruling that the extrinsic evidence did not affect the jury.

Lanier said by email that the jurors’ own testimony dictated Polster’s decision. “The judge denied the motion after bringing each juror in and asking them if it affected their thoughts or neutrality,” he said. “They all remain unbiased, and under the law, that cinched the judge’s ruling.”

Monday’s ruling may not be the last word on the juror’s misconduct. Lawyers for the defendants – Weil, Gotshal & Manges and Marcus & Shapira for Giant Eagle; Bartlit Beck for Walgreens; Zuckerman Spaeder for CVS; and Jones Day for Walmart – did not respond to my email query but their briefs warned that allegations of a tainted jury could resurface at the end of the trial or on appeal.

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.