Opioid Makers Want to Know Why 500 Jurors Were Dismissed From Upcoming Trial
Corporate defendants facing the first jury trial over the opioid crisis, such as Johnson & Johnson and McKesson, plan to challenge the jury selection process after court officials dismissed 70% of the prospective jurors from service this month.
September 23, 2019 at 03:39 PM
4 minute read
The original version of this story was published on Law.com
Corporate defendants facing the first jury trial over the opioid crisis plan to challenge the jury selection process after court officials dismissed 70% of the prospective jurors from service this month.
In a Sept. 20 filing, Johnson & Johnson, McKesson Corp. and other companies sought court records outlining details about the 1,000 prospective jurors who received summonses and why court officials dismissed 500 of the 725 who returned their summonses from service relating to an Oct. 21 trial in Cleveland.
"Of the pre-screening questionnaires returned, roughly 500 jurors—nearly 70% of responding potential jurors—have been excused, deferred, and/or exempted for unknown reasons," their lawyers wrote.
They cited a provision in the Jury Selection and Service Act that allows access to such court records in preparation for filing a motion to halt proceedings due to a "substantial failure" in the jury selection process.
Plaintiffs attorneys in the upcoming trial did not respond to a request for comment.
The trial, expected to last eight weeks, presents the first time a jury will decide who caused the opioid crisis. Earlier this year, a judge in Oklahoma's Cleveland County District Court awarded $572 million to the state's attorney general in a bench trial alleging that Johnson & Johnson, whose Janssen Pharmaceuticals unit manufactured opiate pharmaceuticals, created a public nuisance.
Next month's trial also is the first in federal court and comes in the multidistrict litigation that encompasses 2,000 other lawsuits by cities and counties across the nation. Two Ohio counties, represented by lead plaintiffs counsel in the multidistrict litigation, are set to go to trial against several manufacturers and distributors of opiate pharmaceuticals, and Walgreens, which sold them. Some manufacturers, such as Purdue Pharma, have agreed to settle out of the trial.
According to last week's filing, Johnson & Johnson's lawyers raised the issue about the pre-screening of jurors at a Sept. 16 telephone hearing. U.S. District Judge Dan Polster of the Northern District of Ohio referred them to the jury department, which revealed that court officials had eliminated 70% of the jurors who responded to summons.
Among the records sought are documents about the court's process of selecting and excusing the prospective jurors, demographic information, responses and communications.
The filing comes as Johnson & Johnson has challenged a ruling last month by Polster, who is overseeing the multidistrict litigation, that would allow a jury to decide whether the defendants created a public nuisance but give the judge the role of determining the amount of abatement costs needed to fix the crisis. Plaintiffs attorneys plan to ask for $8 billion.
Having a jury decide public nuisance, Johnson & Johnson's lawyer wrote in a Sept. 19 memorandum, would create confusion among the jurors, who would hear "emotionally charged and prejudicial evidence" before reaching a verdict on other claims, such as violations of the U.S. Racketeer Influenced and Corrupt Organizations, or RICO, Act.
"Doing so would only inflame jurors against defendants and increase the chances of unjustified, emotionally driven liability determinations on the RICO and conspiracy claims," wrote Charles Lifland of O'Melveny & Myers.
Distributors have not objected to Polster's ruling on the public nuisance claim but have brought a motion to recuse the judge. In that motion, they claim Polster has appeared partial by continually pushing for settlement, most recently by approving an unprecedented "negotiation" class to resolve all the cases, and in his remarks to the press. Such partiality, they wrote, raised questions about having Polster decide potential abatement costs tied to a jury's verdict on public nuisance.
"A reasonable person would question whether a court that has repeatedly spoken to what it believes to be the scope of the problem and whose stated goal is to provide money to government agencies to resolve that problem as quickly as possible can do so impartially," they wrote in a Sept. 14 motion.
Plaintiffs attorneys have countered that the recusal motion is untimely and incorrectly interprets the judge's comments.
"The defendants' disappointment with specific rulings, or with the outcome to date of the resolution track, or most centrally that a trial is imminent, is therefore no basis for recusal, especially in the absence of any timely attempt to raise or resolve the issue," they wrote.
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