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Walmart, CVS Seek Opioid Mistrial After Juror Does Own Research

Oct. 25, 2021, 5:23 PM

CVS Health Corp., Giant Eagle Inc., Walgreens, and Walmart Inc.—facing claims that they helped fuel the nationwide opioid crisis—sought a mistrial from a federal judge in Cleveland after a juror returned to court with pamphlets that allegedly contradicted their testimony.

The retail pharmacy chains moved to derail a bellwether trial in the U.S. District Court for the Northern District of Ohio over pamphlets—shown by “Juror 4" to other jury members—indicating that the opioid cessation drugs the pharmacies sell for profit are available for free elsewhere.

The trial of public nuisance claims on behalf of two Ohio counties is the first major test of allegations that prescription-oversight and supply-control failures by large retail pharmacies are to blame for the opioid crisis, with billions in broader potential liability riding partly on the result.

In their Sunday motion for a mistrial, the pharmacies say the opioid cessation materials—which the juror collected on her own after “insinuations” about “corporate greed” by counsel for the counties leading the case—irreparably “tainted” the rest of the jury, even though Juror 4 was removed.

Although the counties are formally opposing the mistrial request, their attorney made “unscripted and candid statements” in court Oct. 22 that served as “an implicit recognition of the prejudice to the pharmacies,” according to the court filing.

The counties fired back the same day. Although violations like Juror 4’s can be grounds for a mistrial, “plaintiffs are satisfied that Juror 4’s conduct did not incurably prejudice any party, that the jury can remain impartial, and that the trial should proceed to a conclusion,” their brief said.

Moreover, “the availability of Narcan,” the cessation drug, “is not at issue in this case,” according to the counties. “Any potential prejudice is easily curable—and in fact has already been cured” by the removal of Juror 4 and the judge’s instructions to the remaining jury members, the filing added.

Simmons Hanly Conroy, Motley Rice LLC, and Farrell & Fuller LLC are co-lead counsel for the plaintiffs, with Lanier Law Firm serving as trial counsel and Spangenberg Shibley & Liber as liaison counsel. The counties are represented by Plevin & Gallucci Co. and Napoli Shkolnik.

CVS is represented by Zuckerman Spaeder LLP. Giant Eagle is represented by Weil, Gotshal & Manges LLP and Marcus & Shapira LLP. Walgreens is represented by Bartlit Beck LLP. Walmart is represented by Jones Day.

The case is In re Nat’l Prescription Opiate Litig., N.D. Ohio, No. 17-md-2804, opposition to mistrial motion filed 10/24/21.

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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