By Jack Karp

Law360 (June 22, 2021, 3:58 PM EDT) -- Limiting the pool of potential jurors to only those who have been fully vaccinated against COVID-19 could unfairly skew the jury in national multidistrict opioid litigation, pharmacies are telling an Ohio federal judge.

Pharmacies that are defendants in the MDL, including Walgreens, CVS and Rite Aid, asked the judge Monday to reconsider his order requiring that all prospective jurors in the upcoming trial be vaccinated. 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 pharmacies said.

"By all appearances a substantial portion of the potential jury pool — possibly 40 percent or more — will not be fully vaccinated at the time of jury selection," according to the companies' motion. "Eliminating all those people would not only reduce the size of the eligible jury pool, it would also skew the pool in ways that would likely affect the parties' ability to pick a fair and impartial jury."

U.S. District Judge Dan Aaron Polster said 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, though he stopped short of mandating that step.

But limiting prospective jurors to only those who are fully vaccinated could impact the composition of the jury or its fairness, according to the pharmacies.

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 for reconsideration. And the current available data indicates the vaccinated population differs from the unvaccinated population in "key geographic and demographic metrics," the pharmacies insisted.

More women have been vaccinated than men, and more whites and Asian Americans have been vaccinated than African Americans, the motion said.

"Ample evidence suggests that vaccination rates also vary substantially based on political and social views," according to the motion, which added that vaccinations have lagged in areas of the state that voted to reelect former President Donald Trump and among those with lower levels of education and income.

There is no statute, rule or policy requiring juror vaccination, and both the Administrative Office of the U.S. Courts and the National Center for State Courts have shied away from any coronavirus restrictions that might impact juries' composition, the pharmacies said.

Neither the A.O. nor the NCSC have endorsed mandating vaccinations for jurors, spokespeople for both organizations told Law360. And being vaccinated for COVID-19 is not a legal qualification for serving on a jury, according to the A.O.'s spokesperson.

"The A.O. also has advised courts considering such a requirement to monitor how such an inquiry impacts the ability to provide litigants with a jury selected at random from a fair cross-section of the community," Charles Hall from the A.O.'s Office of Public Affairs said.

"We support Judge Polster's ruling but do not oppose the reconsideration," said attorney Hunter Shkolnik of Napoli Shkolnik, who represents two Ohio counties that are plaintiffs in the case. "These are issues within the sound discretion of the court."

But at least one expert agreed with the pharmacies.

Because people might choose to not get vaccinated for a variety of reasons, judges shouldn't require juror vaccination, according to Professor Suja Thomas of the University of Illinois College of Law, whose research focuses on the right to a jury trial and criminal and civil juries.

"In my opinion these possible jurors should be able to serve," she said. "And yes, the results in cases could be affected by excluding such jurors."

A spokesperson for CVS declined to comment further on the pharmacies' motion, but said in a statement, "We are proud to play a leading role in our nation's vaccination effort against COVID-19. To date, we've administered nearly 24 million vaccine doses in our retail pharmacies and at long-term care facilities. We continue to offer vaccines in our pharmacies across 50 states, Puerto Rico and Washington, D.C. and encourage all eligible individuals to get vaccinated."

Attorneys for the other pharmacies in the MDL did not respond to requests for comment.

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 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 Emily Field and Jeff Overley. Editing by Amy Rowe. 

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