Pharmacies awaiting a verdict in a high-profile opioid trial have asked a Florida judge to declare a mistrial after jurors began their 11th day of deliberations on Wednesday.
The jury, after 51 days of trial in Broward County Circuit Court, has sent multiple notes since beginning its deliberations on Nov. 14. Some of those notes, according to Wednesday’s mistrial motion, indicate that jurors could be deadlocked but unaware they can notify the court about their situation.
“No lawyer in this case has ever experienced deliberations remotely approaching this duration or structure,” says the motion, filed by lawyers for Walmart, Walgreens and CVS. “Although plaintiffs have pointed to examples they found on the internet of juries that have deliberated longer, those are the Guinness Book of World Record type cases. None of the lawyers in this case – including counsel with many decades of collective trial experience – has ever witnessed anything approaching deliberations of this length and strain.”
The three pharmacies are accused of flooding Florida counties with opioid prescriptions, straining the financial resources of more than a dozen hospitals, and plaintiffs’ attorney Warren Burns, of Dallas-based Burns Charest, has asked for up to $1.5 billion in damages. Unlike most opioid trials, which have focused on public nuisance claims against drug manufacturers and distributors, the trial alleges the pharmacies violated the Florida Racketeer and Influenced Corrupt Organizations Act by acting together in profiting off customers addicted to the painkillers.
The deliberations, the motion says, are “extraordinary by any measure.”
“After more than 60 hours of deliberations spanning four weeks, multiple notes indicating discord and loss of focus, and clear signs of juror frustration, further deliberations risk coercion and a compromise verdict,” the motion says. “The jury has crossed the point where continued deliberations remain a reliable indicator of reasoned judgment. They are instead becoming a vehicle for coercion.”
Burns, the plaintiffs’ attorney, told Law.com, “The motion reeks of desperation. It is based on nothing more than rank speculation and an ardent desire to upset the deliberative process. Over 11 days, this jury has shown absolutely no sign of deadlock; no sign of dispute; and every sign that they are taking their job seriously and going about the work the court has asked them to do. The motion is a fiction. We are confident it will be denied."
‘Textbook Sign of Deadlock, Frustration, and Pressure’
The mistrial motion referenced one note from the jury on Nov. 24 asking for the sworn oath for jurors – a request that first triggered concern from defense lawyers that they might be deadlocked but unaware that they can tell the court without disclosing the numerical split, according to Courtroom View Network’s livestream. Burns countered that they should not “tinker” with the jury’s deliberations.
Warren T. Burns, founder and co-managing partner of the law firm of Burns Charest LLP, has been elected to membership in the American Law Institute.
“Having presided over well past 300 jury trials, as a judge, I’ve never had a jury have a problem to communicate with me with regards to whether or not there’s a deadlock at some point,” Phillips told the lawyers at the time. “I’m not going to read too much into that.”
Cornell Law School Professor Valerie Hans, an expert on juries, said she had never heard of a jury asking for a repeat of the juror’s oath.
“It was a lengthy trial, so they could be very deliberate in how they are going through their review of the evidence,” she said. “That’s a hallmark of an ‘evidence-driven’ jury—extensive review of evidence first, then exchange of views about the verdict. Of course, it could also mean that they disagree about the interpretation of evidence in the case or about the verdict.”
Another note, on Tuesday, sought explanation for a juror who was “arguing” a point the others disagreed with — a “textbook sign of deadlock, frustration, and pressure.” The question, according to Courtroom View Network’s livestream of the trial, focused on the alleged crime of violating the Controlled Substances Act, a federal law, in the distribution of opioids, asking, “Can you please clarify or is there someone, perhaps a paralegal, or someone else with law knowledge, to help the juror (jurors) understand the law?”
Phillips responded by referring the jury back to the instructions.
“They’re certainly not shy. Certainly, they’re continuing to work back there,” she told the lawyers about the jurors. “What I don’t want to do is get in there, essentially.”
The mistrial motion also referenced that one juror “became aggressive” with the court’s camera operator during a break, “demanding to know whether he was being recorded.”
“These are unmistakable signs of deliberations that have ceased to be productive,” the motion says. “These are not characteristics of a jury capable of rendering a fair, reasoned verdict. They are characteristics of a jury that has reached the functional limits of deliberations and is now simply trying to find an alternative means to end the case.”
In a statement to Law.com, Courtroom View Network Section Editor Arlin Crisco wrote, "CVN's presence in the courtroom for the duration of this trial complies with both Florida and local court rules for recording proceedings. CVN never records jurors, and our videographer has followed all appropriate protocol, including never speaking with jurors."
'Jurors May Not Realize They Have This Option'
In Nov. 14 closing arguments, lawyers for the pharmacies told jurors that spikes in patients admitted to hospitals were primarily due to opioids from other pharmacies, including pill mills doling out large numbers of prescriptions. All three defense lawyers said the plaintiff hospitals hadn’t proven a criminal racketeering conspiracy among them.
They also questioned the request for damages of more than $1 billion, which David Markus, of Markus/Moss in Miami, who represents Walmart, called a “money grab.”
And pharmacists aren’t the ones who write opioid prescriptions, said Brian Swanson, of Chicago’s Bartlit Beck, who represents Walgreens.
“It’s doctors who guide volume. Pharmacists do not guide volume,” he told jurors, according to Courtroom View Network. “Pharmacists fill prescriptions written by doctors. Without a prescription, there’s nothing for a pharmacist to do.”
Eric Delinsky of Zuckerman Spaeder. HANDOUT.
Zuckerman Spaeder’s Eric Delinsky, in Washington D.C., represented CVS.
On Nov. 28, the pharmacies filed a mistrial motion, citing 17th Judicial Circuit Court Judge Carol-Lisa Phillips’ readback, in response to a jury question, of the “most prejudicial sliver” of testimony from one of the plaintiffs’ experts. Phillips rejected that motion.
Wednesday’s motion suggests that should Phillips not grant them a mistrial, she should give the jury a “neutral instruction” stating, “Ladies and gentleman of the jury, if you find that you are unable to reach a unanimous verdict, you may notify the court by handing a note to the courtroom deputy. You should feel no rush to complete your deliberations, however, and you should not feel any need to write a note that is not warranted by your deliberations.”
“Jurors may not realize that they have this option,” the motion says. “Florida law permits such neutral instructions where prolonged deliberations raise concerns about possible deadlock or coercion.”
The lengthy deliberations aren’t the only unusual aspect of the jury. Before taking five days off for the Thanksgiving break, the motion says, the jury offered home-made spiced nuts to the attorneys and the court, along with a card “containing images of the parties and items of evidence from trial.”
On Halloween, when the trial was on its 26th day, jurors dressed up as the characters Things One through Nine from the Dr. Seuss book, “The Cat in the Hat.” In his closing argument, Markus, of Miami-based Markus/Moss, in a nod to the jury’s costumes, wrote his own poem in the style of Dr. Seuss, titled “Walmart is not a Racketeer”:
“If you look and you listen and weigh every fact, you will see there’s no plot, no criminal act, no whisper, no wink, no nod or collusion, just hard-working folks and a grand wrong conclusion,” he said, according to Courtroom View Network. “The facts are the facts. They do not pretend. And here, those facts bring the story to an end.”
Deal Summary
