When juror misconduct doesn’t matter: opioid MDL edition

Opioid-based hydrocodone tablets in a pharmacy in Portsmouth, Ohio, June 21, 2017. REUTERS / Bryan Woolston

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

The jury’s violation was so serious that even Mark Lanier of Lanier Law Firm, the Ohio Counties lead trial attorney, told Cleveland District Judge Dan Polster that it was “appropriate” to have a wrongful trial three weeks after a scheduled deadline to explain six-week procedure.

Lanier then changed his mind, and on Sunday his customers filed a brief objection letter from regional retailer Giant Eagle Inc and all four of the defendants: Walmart Inc and CVS Pharmacy Inc, and Walgreens and Giant Eagle. On Monday, Polster, who heads the nationwide opioid multiple district trial, rejected the malpractice motions in a bank ruling.

How did Lake and Trumbull Counties, Ohio, avert a wrongdoing that even their own chief trial attorney initially said was warranted? Polster did not issue a written opinion, but based on what he said in court on Friday and on arguments in the counties’ brief denial of trial, the trial appears to have been saved because the judge acted quickly to assess and mitigate the damage.

According to external jurors’ research on the news, when Mexican drug lord Joaquin “El Chapo” Guzman appealed his conviction to the US Second Court of Appeals and former West Virginia Justice Allen Loughry appealed to the US Supreme Court decide whether he was entitled to a hearing via a juror’s Twitter feed, it is worth checking out Polster’s handling of the Kerfuffle.

The story began last Wednesday when jurors asked a question during a Walgreens executive testimony: Did Walgreens deliver the anti-overdose drug Naloxone or Narcan for free to patients on high-dose opioid prescriptions? The chief executive said Walgreens sometimes worked with local health officials to give out Narcan for free, but otherwise patients could bill their insurance companies or pay for it themselves.

The exchange was brief, only a few minutes over three days of testimony, but was well received by a member of the jury. She later told the judge that she knew Narcan was open to the public for free and “had a strong feeling that I didn’t want anyone to think they had to pay.”

On Thursday morning, the judge handed the other judges a copy of a flyer describing a free Narcan distribution program in Northern Ohio. She also told jurors who were already in the jury room that the overdose drug is available for free.

Polster found out about the incident during his lunch break on Friday. (It is not clear by whom.) The judge called the offending jury for questioning. She admitted her wrongdoing and was released 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 other jurors about his online research into an unusual ICE officer’s uniform badge. )

Polster then questioned the rest of the jury about the incident. All other jurors upheld the dismissed juror’s claim that Narcan was available free of charge. Most said they received the flyer describing the public distribution program. Several said they at least had a look at the handout. Some said they were concerned about the apparent violation of the judicial prohibition on alien research.

Defense attorneys told Polster Friday that they were biased by the jury’s disclosure of their unauthorized research. The counties teased their theory that the pharmacies were blinded by greed, they said, and the aviator played along. The jury, they said, was beyond repair.

Lanier acknowledged the outside evidence couldn’t harm plaintiffs – and likely gave weight to their for-profit claims. He told the judge that the jury’s misconduct affected all jurors, whether they realized it or not.

Polster sent the jury home for the day, but said he was inclined to continue the trial because “I cannot see a juror deciding whether to indict Narcan.” He told both sides to consult their customers and turn to him.

The defendants’ pleadings stressed that the taint in the external evidence was irreversible – and that the judge’s response only increased the importance of the incident in the minds of the jury. They cited the 1982 6th District decision in In re Beverly Hills Fire Litigation that overturned a verdict on fire victims after it was revealed that a juror improperly discussed the results of a home experiment on his own wiring system. “No instruction can cure this wrongdoing,” emphasized the defendants.

The districts waived Lanier’s initial concerns in an email to the court on Saturday. Her briefing on Sunday stated that since the judge was investigating the incident, it found no prejudice and reminded the jury of their obligation to disregard external information, there was no need for wrongful trial. The facts, they said, were similar to a 2008 US 6th District Court ruling v Wheaton in which a juror used his personal laptop to answer a technical question that arose during jury deliberations. The 6th District upheld the decision of the court of first instance that the extrinsic evidence would not affect the jury.

Lanier said via email that the jury’s own testimony dictated Polsters’ decision. “The judge denied the motion after consulting each juror and asking if it affected their thoughts or neutrality,” he said. “They are all impartial and subject to the law that made the judge’s decision.”

Monday’s verdict may not be the last word on jury misconduct. Attorneys 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 request, but their pleadings warned that allegations made by a depraved jury may recur at the end of the trial or on appeal.

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

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The opinions expressed are those of the author. They do not reflect the views of Reuters News, which are committed to integrity, independence and bias under the trust principles.

Alison Frankel

Alison Frankel has been a Reuters columnist reporting on high-level trade disputes since 2011. A graduate of Dartmouth College, she has worked as a New York lawyer journalist for more than three decades. Prior to 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 Precious Coin. You can reach them at alison.frankel@thomsonreuters.com