Attorneys Set to Pick Jurors in Massive Opioid Trial

CLEVELAND (CN) – Jury selection will begin Wednesday in a major bellwether trial testing the first of thousands of claims filed by local governments against pharmaceutical companies over the nation’s opioid epidemic.

Oxycodone pills are displayed in New York in August 2018. (AP Photo/Mark Lennihan, File)

U.S. District Judge Dan Polster, who is overseeing the multidistrict litigation based in the Northern District of Ohio, made the announcement while setting ground rules at a pretrial hearing Tuesday.

The trial, set to kick off next Monday, will test Summit and Cuyahoga counties’ nuisance claims against drug manufacturers and distributors. They are just two of more than 2,000 cases that Polster is overseeing.

The judge said he would have “a wide strike zone” for each side on what the federal government did and did not do regarding the opioid crisis.

“This is essential to the narrative,” he said at the hearing.

Polster said he would not allow testimony about how much attorneys are being paid and how they travel, but said those questions will be “fair game” in regard to expert witnesses.

The judge also denied the counties’ objection to testimony about the defendant companies’ philanthropy as overbroad.

Evidence will not be allowed regarding how the trial’s result would harm the pharmaceutical industry or its ability to develop new drugs, Polster said.

“Individual witnesses will not be allowed to testify about their personal feelings about who is responsible for the opioid crisis,” he added.

The judge also said that Supreme Court precedent does not require the defendants to stop selling their products, “so nobody can argue that they should have.”

Opening statements are set to be delivered Monday, with testimony beginning the next day. Each side will have 100 hours to present its case.

A special master’s report has estimated that the trial will last nine weeks, or until the middle of December. The trial will not be in session on Oct. 25 and will also take holiday breaks on Nov. 11 and Nov. 27 to 29.

Polster ordered the participants in the trial to keep the proceedings to themselves.

“There will be no discussion by attorneys, parties and witnesses about what has happened in the courtroom,” he said.

The judge also expressed his disappointment that the parties had not agreed on jury instructions with less than a week to go before the trial begins.

“I am working on some preliminary jury instructions,” Polster said. “I need to tell the jurors something about what they will be doing.”

The plaintiffs are the first municipalities to bring their cases to trial, among over 2,000 other U.S. cities and counties that have filed suit.

They are pursuing claims of civil conspiracy and public nuisance. The two Ohio counties also claim opioid marketers and supply-chain operators violated the Racketeer Influenced and Corrupt Organizations, or RICO, Act, as well as the Ohio Corrupt Practices Act.

The seven defendants are Walgreen, Cardinal Health Inc., McKesson Corp., AmeriSource Bergen Corp, Insys Therapeutics Inc., Henry Schein Inc. and Actavis LLC.

Ten other defendants, including Walmart and Rite Aid, have been severed from this trial and are scheduled to participate in future trials.

Johnson & Johnson, Endo, Mallinckrodt and Allergen have settled with Cuyahoga and Summit counties. These agreements will send $55 million to the counties to battle the opioid crisis.

OxyContin manufacturer Purdue Pharma has also reached a tentative settlement of $10 billion to $12 billion to resolve thousands of claims from cities, counties and tribes across the country. The company would declare bankruptcy under the plan.

So far, one state has gone to trial over the opioid epidemic. In August, a judge awarded Oklahoma $572 million in damages after finding the state successfully proved Johnson & Johnson created a public nuisance by aggressively pushing the drugs to doctors.

Brian Grosh contributed to this report.

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