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Mistrial sought in federal opioid case being held in Cleveland courtroom

A juror was removed for doing her own research on the case and then sharing her findings with fellow jurors. Pharmacy attorneys want the trial stopped.

CLEVELAND — A juror hearing the ongoing opioid trial in federal court in Cleveland has been removed after doing her own research on testimony and presenting her findings to other jurors.

The woman's actions have led attorneys representing the pharmacies on Friday to request a mistrial.

U.S District Court Judge Dan Aaron Polster has yet to rule on the motion filed by attorneys representing Giant Eagle, Walgreens and CVS. Lake and Trumbull counties are suing the pharmacies on claims that they failed to recognize excessive opioid prescriptions being filled in their counties.

The trial is a bellwether case in a massive series of lawsuits brought against the industry in response to the opioid crisis that hit the U.S., leading to thousands of deaths and addictions across the country. Proceedings began Oct. 4 and are expected to last two to three more weeks.

The juror incident revolves around testimony that pharmacies had charged customers — and profited — for naloxone, commonly known as Narcan, a drug that stops the overdose effects of opioids. After testimony ended and the jurors went home, the juror performed research finding that naloxone was available elsewhere free of charge. She then brought in her research along with pamphlets to share with fellow jurors.

After learning of the incident, Polster removed the juror and then questioned other jurors about the impact. Having been assured by other jurors that they would not be influenced by the pamphlets, Polster allowed the trial to move forward.

Jurors are never permitted, and are warned repeatedly, that they cannot be influenced by news events or perform their own research outside the courtroom. Pharmacy attorneys fear the outside work will unduly influence the remaining jurors and that a mistrial now is better than a mistrial later after several more weeks of testimony.

"In short, there is no question that most if not all of the jurors were made aware of the fact, content, and relevance of [the dismissed juror's] outside research," the defense wrote in its motion calling for a mistrial.

Attorneys representing Lake and Trumbull counties argue a mistrial is not necessary and that the Narcan evidence is not significant enough to warrant a drastic response.

"The sale of Narcan and the availability of free Narcan has little to do with the ultimate issues in this case," they stated. "As the court noted, whether Narcan is available for free has no bearing on the questions of whether the [pharmacies] caused a public nuisance in Lake and Trumbull counties."

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