A landmark opioid trial is coming to a close in Cleveland, and it is illustrating in stark terms the far-reaching dangers of judicial finish-line fixation, when judges seem to elevate reaching the end of a trial and getting to a verdict above all else.
The Cleveland opioid trial is immense. It is the first opioid trial to focus on the role of pharmacies such as CVS and Walgreens. Billions of dollars potentially hang in the balance. And the trial has already run for a month, with more in store.
You would think these stakes would call for the most careful kind of adjudication by Judge Dan Polster, a Clinton appointee who has been on the bench for over two decades. But the scale of the trial looks to have had the opposite effect, with Polster pressing on despite juror misconduct that lawyers on both sides (and court-watchers) have acknowledged should have caused a mistrial and restart with a new jury.
The juror misconduct has rightly been called “grave.” A juror did her own at-home research and then handed fellow jurors a printout that she thought cast doubt on witness testimony. Even lead counsel for the two Ohio counties that are pursuing the pharmacies told Polster in the courtroom that it made sense to declare a mistrial. Instead, Polster dismissed the juror while soldiering on with the case, expressing concern that a mistrial would cause an intractable delay and potentially lead to another trial in another state jumping ahead of this one.
A rush toward a verdict is never good. But it is particularly concerning here because the theory that is being trial-tested — whether pharmacies are legally responsible for creating a public nuisance by filling customers’ prescriptions for FDA-approved opioids — has far-reaching implications beyond this case.
The movement to use public nuisance to go after industries that sell legal, licensed, and heavily regulated products had a liftoff moment in recent years when trial lawyers convinced local governments to bring climate change-based public nuisance claims against energy companies.
But a federal appeals court recently shot a dagger into that effort, tossing a New York City suit against five international oil companies that sought to recover, as the court put it, “damages caused by those companies’ admittedly legal commercial conduct in producing and selling fossil fuels around the world.” And the Oklahoma Supreme Court ruled almost unanimously this week to wipe out a nearly $500 million judgment against Johnson & Johnson over opioids after concluding that the public nuisance claims in the case were being improperly used.
Even the New York Times’ health law writer has noted the unprecedented scope, nature, and ineffectiveness of current opioid litigation: “What is turning out to be difficult, however, is establishing an incontrovertible link between a ‘public nuisance’ and the discrete actions of so many types of companies that provide a federally approved medication prescribed by doctors and which are supposed to be monitored by state and federal agencies.”
After the high-profile rebuke of New York City’s public nuisance efforts and the wipeout of the Oklahoma opioids claims, the Cleveland opioid trial carries special weight for public nuisance activists. A win in Cleveland would give oxygen to the partisans who are trying to deploy public nuisance theories as an ideological weapon. If pharmacies are liable for selling FDA-approved opioids to customers with prescriptions from licensed doctors, we should expect to see activists start to go after car dealers, gun stores, and anyone else who sells a regulated, licensed product that falls on the wrong side of a major ideological divide. Polster’s apparent finish-line fixation is especially dangerous in light of these implications.
There is, of course, an urge in every judge (and person) to finish something that you have started. But a judge has to avoid fixating on the endgame and instead manage a fair process. Judges are supposed to be the umpires at a trial, not players on the field.
Yet all indications are that Polster, rather than focusing on the balls and strikes, seems laser-focused on reaching this trial’s end. And this wouldn’t be the first time he has shown this penchant. Throughout the consolidated federal opioid cases, Polster has been unusually open about his desire to wrap things up with a quick, global resolution. And he has backed that up with aggressive procedural maneuvering.
Perhaps most notably, in an unheard-of ploy to force a quicker global opioids resolution, Polster tried to impose an unprecedented “negotiation class,” which drew a swift repudiation from the Sixth Circuit Court of Appeals that sits in review over federal trial courts in Ohio. Indeed, the Sixth Circuit has spoken up several times to correct Polster’s procedural handling of this case.
Whatever the reason for Polster’s finish-line fixation — a desire to “solve” the opioid crisis, a desire to be done with this massively complicated case, or something else — it is a dangerous way to run any case, much less one that could give new life to activists who are trying to weaponize the courts against industries that fall on the other side of major ideological divides. Don’t be surprised if, at the end of this trial, we see the Sixth Circuit once again step in and remind Polster that he needs to focus on a fair process and not a rush to the finish line that could cause havoc far beyond Cleveland.
O.H. Skinner is the executive director of Alliance For Consumers and the most recent solicitor general in the Arizona Attorney General’s Office, where he represented Arizona against some of the world’s largest, most high-profile corporations.
