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Law360 (June 23, 2021, 3:34 PM EDT ) An Ohio federal judge said on Wednesday he wouldn't automatically throw out potential jurors in the national multidistrict opioid litigation because they are unvaccinated against COVID-19, undoing an earlier order requiring juror vaccinations.
U.S. District Judge Dan Aaron Polster granted a bid from various pharmacy defendants, including Walgreens, CVS and Rite Aid, to reconsider his order that had required that all prospective jurors in the upcoming trial be vaccinated.
The pharmacies argued that "the fact that vaccination rates vary by race, gender and political views could make the jury 'less likely to reflect a fair cross-section of the community.'" The judge said Wednesday that the "pharmacy defendants make good points."
The judge said he "will not automatically disqualify prospective jurors who are not vaccinated."
The pharmacies filed their reconsideration bid Monday.
That was a response to Judge Polster's decision on June 14 that he would only allow people who have been fully vaccinated against COVID-19 to serve as jurors in the consolidated cases. The judge also encouraged attorneys and witnesses appearing at trial to be fully vaccinated, although he stopped short of mandating that step.
Limiting prospective jurors to only those who are fully vaccinated could impact the composition of the jury or its fairness, the pharmacies argued in the now-granted bid.
Ohio's Department of Health reported that only 42.6% of the state's population was fully vaccinated as of June 16, the pharmacies said in their motion. And the available data indicated the vaccinated population differs from the unvaccinated population in "key geographic and demographic metrics," according to the motion.
Jury selection for the first pharmacy bellwether is scheduled to begin Sept. 29 and continue through Oct. 1, according to Judge Polster's June 14 order. The trial itself is set to start on Oct. 4.
The trial will center on claims by two Ohio counties, Trumbull and Lake, that pharmacy chains like CVS and Rite Aid created a public nuisance by turning a blind eye to suspiciously large opioid orders.
The MDL has largely been focused on drugmakers and distributors. But with many of those companies working to reach global settlements, the focus has moved to the major pharmacies.
The plaintiffs in the case said that they didn't object to the judge's decision to grant the reconsideration bid.
"Judge Polster has acted within his sound discretion, and our clients support the decision issued related to COVID vaccines and jury duty," Hunter Shkolnik of Napoli Shkolnik, an attorney who represents the two Ohio counties that are plaintiffs in the case, said in a statement to Law360 on Wednesday.
Counsel for Giant Eagle Inc. and HBC Service Company, which were named as defendants, declined to comment.
Counsel for the other pharmacies in the MDL did not respond to requests for comment.
The cases are County of Lake, Ohio v. Purdue Pharma LP et al., case number 1:18-op-45032, and County of Trumbull, Ohio v. Purdue Pharma LP et al., case number 1:18-op-45079, in the U.S. District Court for the Northern District of Ohio.
The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.
--Additional reporting by Jack Karp, Emily Field and Jeff Overley. Editing by Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
