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Tuesday December 10th, 2019 2:23PM

Challenge in opioid trial: Finding jurors in a stricken area

By The Associated Press
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CLEVELAND (AP) — How to select a jury for a trial on the opioid crisis in an area particularly hard hit by addictions and overdoses? That's the challenge facing attorneys and a judge responsible for choosing jurors in the first federal trial over the epidemic.

Attorneys for two county governments in Ohio and for the half-dozen defendants being sued in a landmark trial in Cleveland are trying to select 12 jurors.

Selection began Wednesday with lawyers and U.S. District Judge Dan Polster interviewing prospective jurors in the judge's chambers to determine whether they have biases against either side, or whether they or immediate family members have been affected by opioids to a point where they would not be suitable for a jury.

Polster said both sides on Thursday will find one additional juror to bring the pool to a total of 24 that attorneys can then question and challenge in winnowing the list to 12.

The legal situation — and jury selection — became even more complicated as multiple defendants asked Polster early Wednesday to delay the trial after reports that the three big drug distributors were offering a total of $18 billion over 18 years to settle the suits set for trial and some 2,000 others.

Two people with knowledge of the talks confirmed to The Associated Press that the offer had been made. They spoke on the condition of anonymity because they weren't authorized to disclose details from ongoing talks. The offer was first reported by the Wall Street Journal.

The lawyers argued that jurors who read or saw any of the coverage would be tainted when learning of the massive amount of money possibly being discussed.

Polster said that he didn't believe many of the potential jurors would have been exposed to the stories, and that he would question them to determine whether they were aware of the coverage.

A delay, he said, could have pushed the trial into next year.

"Only a fool would start a trial in Cleveland in January or February," Polster said.

Questionnaires were sent to potential jurors in nine northeast Ohio counties, including Cuyahoga, which along with neighboring Summit County was chosen as the first plaintiff in a trial in what could become the most complicated class action lawsuit in U.S. history.

Cuyahoga County is home to Cleveland, and Summit to the city of Akron.

The questionnaire asked potential jurors to answer probing questions about their and immediate family members' experiences with prescription painkillers and the crisis itself.

They were asked to check off whether they had ever used 11 different prescription opioids. Had they or family members ever used heroin or illicit fentanyl? Have they ever been prescribed painkillers after surgery? Have they or a family member ever been treated for addiction? Have they ever overdosed?

Those with close connections to the crisis are expected to be excluded from serving on the jury. The pool does not include people from Summit County, which is a separate subdistrict in the 40-county Northern District of Ohio and has its own federal courthouse.

It is expected to take at least another day to pick a jury to listen to evidence in a case with hundreds of millions of dollars likely at stake. That jury will be asked to decide whether the six defendants — a drugmaker, four drug distributors and a national pharmacy — engaged in a conspiracy that has damaged destroyed lives and the amount for which they should be held liable.

If it finds in favor of the counties on the second part of their complaint, that the companies created a public nuisance, it will be up to Polster to decide what is owed.

Polster has made it clear from the start of the case in 2017 that he wants to get help to the counties and the more than 2,000 other local governments, tribes and other entities that are part of the class action suit as quickly as possible.

The trial, arguments for which are set to begin Monday, is considered a bellwether in that the outcome could shape how future trials in the class action are conducted and the possibility of a global settlement Polster has sought.

The federal lawsuits have been merged into a class action known as multidistrict litigation. Polster has made clear since being assigned to the litigation that he wanted communities dealing with effects of the opioid crisis to get help as soon as possible.

The trial itself is expected to last about seven weeks.

If a settlement is reached for any of the defendants before or even during the trial, it would end their part of the case. But it's not clear whether the trial would proceed against other companies if some settled.

Counting prescription drugs and illegal ones such as heroin and illicitly made fentanyl, opioids have been blamed for more than 400,000 deaths in the U.S. since 2000.

Five drug manufacturers, including Purdue Pharma, have used settlements or bankruptcy filings to be dismissed from the trial, winnowing the list of defendants to six: generic drugmakers Actavis and Cephalon, which are both now owned by Teva; the distributors AmerisourceBergen, Cardinal Health, and McKesson; and the pharmacy chain Walgreens — but only in its role as a distributor. A smaller distributor, Henry Schein, is named only in Summit County's complaint.

The companies say they complied with the law and supplied only drugs that doctors prescribed.

___

Mulvihill reported from Cherry Hill, New Jersey. Julie Carr Smyth in Columbus contributed to this report.

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