‘Inflammatory’ closing argument should cancel key opioid trial, defendants argue

CLEVELAND (Legal Newsline) – National pharmacy chains called for a mistrial after the lawyer representing two Ohio counties in closing arguments urged jurors to consider the “national ramifications” of their decision and jokingly suggested they “really go after” any member of the panel who refused to find the defendants liable for causing a public nuisance by dispensing opioids.

The trial represents a key test of the public nuisance theory after the Oklahoma Supreme Court and a California judge rejected the idea companies could cause a public nuisance by selling legal products prescribed by licensed physicians. The judge overseeing federal multidistrict opioid litigation, U.S. District Judge Dan Aaron Polster, interpreted Ohio law differently and ordered pharmacy chains to stand trial for allegedly causing the opioid crisis in Lake and Trumbull counties.

At the conclusion of closing arguments Monday, Walmart, Walgreens and CVS moved for mistrial, saying plaintiff attorney Mark Lanier made “deeply inflammatory and prejudicial remarks,” including telling the jury their decision would impact other lawsuits over the opioid crisis and possibly even lead to criminal investigations of the defendants. At one point in his argument, Lanier also told the jurors defendants are liable.

“I hope that you see it the same way and those who – if there’s some that don’t see it that way, please, those of you who do, I want you not to beat them up, but really go after them,” he said, immediately adding: “No, I’m joking.”

Lanier has swayed juries before, especially when he used a block of cheese to score a staggering verdict against Johnson & Johnson over its Baby Powder.

In a filing arguing against mistrial in the opioid case, plaintiff lawyers said Lanier went on to tell the jury to “debate this” and “come up with the right answer.”

The defendants also objected to Lanier’s repeated reference to the thousands of similar lawsuits by states and municipalities making similar claims against pharmacies, saying the case was “part of a larger picture where we’re trying to figure out who’s responsible and to what degree for the opioid epidemic that plagues not just Northeastern Ohio, but, frankly, plagues most places within the country.”

“Y’all get to form maybe the most seminal case in pharmaceutical history, in pharmacy history, dealing with the Controlled Substances Act,” Lanier said. “That’s you.”

After the pharmacies objected, Judge Polster acknowledged the argument was “a problem” because jurors were supposed to decide only the case before them. The judge told jurors their job was “to decide the issues presented in this case only,” then let the argument proceed.

“Simply telling the jury that it can decide only this case does not mitigate or address the core issue,” the defendants said, which is that they had been told their decision would have impact far beyond the two counties.

The defendants also objected to Lanier’s suggestion the jury’s decision wouldn’t involve money. This is technically true, since Judge Polster decided he will determine the actual damages to be paid if the jury finds the pharmacies liable. (As a public nuisance action, the money will be called “abatement” instead of damages but represents potentially billions of dollars in funding for programs to address the opioid crisis in the two counties.)

“This may be the only civil case you ever get called on where nobody’s asking you for money,” Lanier told the jury. “That’s all in the court’s hands.”

Defendants called the argument “misleading in the extreme, designed to improperly secure a jury verdict.”

Lanier’s statement “could easily be interpreted as an assertion that Defendants face no risk of financial liability from an adverse jury verdict and plaintiffs have little motivation to pursue a lawsuit other than unbridled altruism.”

The plaintiffs, in their objection, cited precedent in the Sixth Circuit, where the trial is taking place, limiting mistrials to cases where attorney misconduct was pervasive throughout the trial. Opioid defendants have objected to plaintiff arguments and the judge’s rulings consistently, however, including winning Sixth Circuit rulings overturning some of Judge Polster’s decisions.

Judge Polster has already refused an earlier request for mistrial after a woman was caught passing out information to her fellow jurors.