Courtesy of Jeff Overley and Cara Salvatore of Law360, Frank Gallucci, principal of Plevin & Gallucci, is joined by his fellow opioid attorneys to discuss the recently-concluded landmark jury trial with regards to opioid litigation.
We couldn’t be more proud of the work and passion Frank and his colleagues put into this trial, and we remain appreciative of the impact such a case could have on the country as a whole.
Fresh off the first jury verdict in coast-to-coast opioid litigation, attorneys for victorious Ohio counties took Law360 behind the scenes to discuss misconduct that nearly derailed the landmark trial, lessons learned from conversations with jurors, and their evolving strategy for future courtroom clashes.
In a one-hour interview, longtime Cleveland lawyers Peter H. Weinberger of Spangenberg Shibley & Liber LLP and Frank L. Gallucci III of Plevin & Gallucci Co. — counsel for the northeastern Ohio counties of Lake and Trumbull — shared new details about a monumental bellwether trial in multidistrict opioid litigation. Jurors last week handed a complete win to the counties, marking a successful first test for thousands of lawsuits alleging that CVS, Walgreens, Walmart and other major pharmacy chains fanned the flames of the opioid crisis via derelict dispensing and distributing of narcotic painkillers.
Held in Ohio federal court during October and November, the trial was the first involving pharmacies, as opposed to drug manufacturers and distributors. It was also the first opioid trial decided by a jury and the first in the MDL to produce a verdict.
Mark Lanier, founder of the Texas-based Lanier Law Firm, also led the counties’ trial team, delivering opening and closing arguments that included abundant props, such as a mixture of flour, Red Hots and Nerds candy that was poured through wire mesh to illustrate the pharmacies’ allegedly shabby systems for screening out inappropriate opioid orders.
“It was an honor to be involved in the case. What is equally an honor is to collaborate with Mark Lanier, who I can say without hesitation is the best trial lawyer in the country and probably one of the best of all time,” Weinberger told Law360.
This interview has been edited for length and clarity.
Both of you have deep roots, personally and professionally, in the Buckeye State. What does this win mean for you?
Weinberger: When I started practicing law, I was oftentimes traveling to Lake County and Trumbull County to try cases, and I’ve represented clients in those counties throughout my career. I’ve seen how those counties have evolved and struggled. And I’ve gotten a real sense of the makeup of the people in both counties. They’re hard-working. Trumbull is more blue collar, but Lake County also has a large population of blue-collar workers. It was very meaningful to me that these are two relatively small counties where I felt like I had a connection to them.
And two of our witnesses — April Caraway from [the Mental Health and Recovery Board in] Trumbull County and Kim Fraser from [the Board of Alcohol, Drug Addiction and Mental Health Services] in Lake County — I kept looking at them and thinking that these are microcosms of the people in the counties, and that they know how deeply affected the counties have been as a result of the epidemic. I’ve gotten to know [county officials] more as we prepped for trial. Frank, he’s really the boots-on-the-ground lawyer.
Gallucci: I actually was born in Lake County. I grew up in Lake County and have family in the Lake, Trumbull and Mahoning areas throughout northeast Ohio. What you’ll find in northeast Ohio is a lot of people who care about each other, and who care about the community, and are vested in the community.
Pete hit it on the head really well when he said that when you start looking at the people who we’re representing, that these are people who commit their life’s work to these communities.
I’m terrified to think where we would be with this epidemic if it weren’t for them doing everything they’ve done to this point. That being said, they’ve never had the resources necessary to truly fight the epidemic in these communities. Obviously, the verdict gives them hope that they can do that. These people are literally, around the clock, fighting this epidemic, and they get nothing out of it except for doing their jobs and trying to improve their community. And that’s why you feel good about representing communities like Lake and Trumbull counties.
Throughout the trial, your side would sprinkle in little facts about your trial team, including the lawyers, county representatives and tech people. That’s quite unusual. Was it strategic? And did it make a difference?
Weinberger: It’s clear that it made a difference. After the verdict, at least nine of the 12 jurors talked with us, and they very much noticed the relationships we had.
They commented particularly on our roles and how Mark and I interacted. Obviously Mark was the leader, and rightly so, because he’s the best trial lawyer in the country. And I had a role, and Frank had a role. And they saw us passing notes, they saw us stopping in the middle of an examination and conferring, they saw us objecting, they saw Rachel [Lanier of the Lanier Law Firm] and Maria [Fleming of Napoli Shkolnik PLLC] working together on exhibits and the like, they saw Juan [Wilson] and Jesse [Alcorta], who are tech people from Mark’s firm.
That’s the culture that Mark brings to a case. Just like he understands how to communicate, particularly visually, with the jury, he understands also that everything that occurs in the courtroom is part of what the jury is observing and sensing. And I think it was contrasted significantly to the other side — at least as I watched them, I didn’t see that kind of collaboration.
Let’s say we had a Walgreens witness. Well, the way we organized the MDL is we had a Walgreens team with three or four of our 21 plaintiffs’ executive committee law firms. They were the ones to work up the case. And so when there was a Walgreens witness to be put on, there would be somebody from the Walgreens team in the back of the courtroom that had done a lot of prep work, and they were there to spring into action with a document or a note or whatever.
And I think the jury saw that, and it was unique to our side. Mark works on the fly and pivots better than anybody I’ve ever seen try a case. And that’s all teamwork.
Gallucci: Pete was also absolutely the glue that held this team together. Whether we were in the discovery process, preparing for meet-and-confers, or meeting with the court, Pete was captain of the ship through the whole process.
All of these firms and people that are involved, we’ve spent four years of our lives together, and we’ve worked and lived as one. The different firms have all come together to be one cohesive team, day in and day out. And but for the ability to do that, I don’t know that we could effectively litigate on behalf of all of these clients and against all of these defendants.
Weinberger: This judge — [U.S. District Judge Dan Aaron Polster, who supervises the MDL] — and others around the country have described this as the most complex litigation in the history of MDLs. And so when you think about [the MDL] starting four years ago, when we were litigating against about 18 different companies, we had to work in silos.
And part of my job, particularly as we got to the point that we were putting together the trial team for the pharmacy case, was to kind of assimilate what we had gathered, meet with Mark, develop the themes with him, and figure out how the evidence that we had developed fit within those themes. And it was constantly evolving.
And frankly, if we had to try another one of these pharmacy cases, it would be a different trial from what we put on. We know some of the things that we would probably focus on more in the next trial, if there is a next trial.
Do you have any doubts that there will actually be another trial?
Weinberger: Well, that’s up to the defendants and how they react to what happened. As you know, in MDLs and mass tort cases, sometimes it takes a number of trials before parties can come together for resolution.
If there is another trial, what might you do differently?
Weinberger: Until we got far along into trial prep, we didn’t realize the significance of the fact that CVS for 20 years took their dispensing data and contracted with [a company] that was selling that data to manufacturers and distributors. And Walgreens and Walmart entered into similar contracts. They used the data to make money off of it, but not to discover bad prescribers, or to profile certain patients whom they shouldn’t have been dispensing to.
But we hadn’t figured out who could testify about it. The regulatory compliance people who we called as adverse witnesses either didn’t know what those contracts were all about, or couldn’t identify them, or were schooled in a way to deny that they ever even knew about the contracts. So, we couldn’t get that into evidence. I’m confident in discovery we’ll find the department heads who continue to be in charge of these contracts, and they’ll be witnesses in the next trial.
The jury asked two questions early in its deliberations. Did you end up hearing anything else from it before the verdict?
Weinberger: Those were the only two questions. And there was no other communication. There was not, “We’re deadlocked,” or, “We’re frustrated,” or, “What do we do? We can’t reach a verdict.” I mean, there was nothing.
Gallucci: They were just as they were during the trial: diligent, alert, awake, attentive. They essentially said, “Business hours are 9 to 5,” and they came in to do their job.
The jury answered different questions on different dates, first finding a public nuisance in each county, and then addressing each pharmacy’s role in each county. What do you guys make of that?
Weinberger: Apparently, after answering that preliminary question as to each county, they went defendant-by-defendant, relying on the exhibits and their notes, and literally analyzed the conduct of each of the defendants separately. They told us that they had big sheets of paper hanging on the walls as to each defendant. And they wrote down the evidence that they thought was important as to each of them and how it fit.
Gallucci: They indicated that they broke out all the witnesses — whether they were specific to CVS, Walgreens or Walmart, or if they overlapped in the instances of experts — and charted everything out. They indicated that they had basically covered the walls of the courtroom that they were deliberating in with charts that they created, and literally went through every single bit of evidence to make sure they didn’t omit anything.
The jury was permitted to ask questions in writing during the trial. How did that affect your approach?
Weinberger: The questions were incredibly insightful. There would be a question to a witness about something that another witness had said three or four days before. So we knew we had a jury that was heavily invested in this case.
Probably 95% of the questions went to the heart of the case, or to the heart of a particular issue. And the fact that they were being asked made us feel very positive about how we were presenting the case. Sometimes you look at these things through rose-colored glasses — you want to think that things are going well, and maybe you overreact in a favorable way to certain questions. I don’t think we did that. If I were sitting at a defense table, listening to these questions being read, I would have been very concerned.
Gallucci: There were over 200 questions. And what was nice is that it told us we were on the right path, because the questions they were asking were a lot of the same things we were seeing in witnesses, and it was validating the approach that we had designed and rolled out in the courtroom.
Weinberger: A lot of the questions reflected that they were embracing many of our themes.
This was the first trial against pharmacies. What did you learn about how the companies are going to defend themselves in these trials?
Gallucci: I think it was consistent with what we anticipated in terms of the arguments we had seen in motions practice along the way and the approaches that had been utilized in depositions as we approached trial.
Weinberger: I agree with that. The other thing that I came away with, from what one of the jurors [told us], was that the defendants thought it would be OK for them to just say to the jury, “Our systems evolved, and they continue to evolve, and we were doing the best job that we could. And we have good pharmacists who care about the community.” And that that would carry the day.
Whereas, we tried the case on the basis that, yes, for the most part, these were all great pharmacists. But they weren’t provided the tools in terms of policies, systems, etc., to control against diversion. One juror, who is an engineer, told us, “If I make a design change that affects the safety of the product that I’m working on, that happens within a couple of weeks, and I know that it’s been implemented and enforced.” And he said that the fact that it took the defendants years and years and years to develop policies to guard against the diversion of dangerous drugs — and these are Fortune 50 companies that should have good systems of compliance — that that convinced him that they hadn’t acted appropriately.
So, how are they going to try the case differently the next time? Because the facts are the facts.
Gallucci: The challenge with them trying the case differently is that the way they were forced to try it with us was document-based. And so factually, they have a problem. The case is brought on the basis that they have failed their legal obligations to these communities. And there are documents and witnesses that support our position. And I think the verdict illustrates that we’re on the right side of this.
At one point, a juror did her own research and shared her findings with other jurors. Mark Lanier initially said a mistrial would be appropriate, but the plaintiffs ultimately decided otherwise. There’s also been some commentary — I’m not sure if it’s accurate — suggesting that Judge Polster indicated he might retire if the plaintiffs requested a mistrial. What happened there?
Weinberger: Let me take the last comment first: He didn’t threaten to retire. What he said was, if a mistrial would occur, he wasn’t sure when he would be able to set the next trial or a retrial. He certainly didn’t say he was going to walk away from the MDL and from these cases.
When we found out what this juror had done, we had sort of a knee-jerk reaction. But when we thought about it some more, we realized that it wasn’t nearly what we thought it was. And I was pretty confident that if the judge brought in all the remaining jurors and individually questioned them in open court as to whether they could remain fair and impartial, and if they all confirmed that they had not been affected by this, that it was appropriate to continue with the trial.
And as it turned out, it was a lot more benign than what we originally thought. When each of the individual jurors were questioned, most of them sort of said, “I realized it was wrong, but I ignored it, and it didn’t really affect me.” The case law says that if the judge does that individual questioning of the jurors, and they answer that they were not affected, and that there had not been any other similar incident, that it’s appropriate to overrule the motion for mistrial and to proceed with the trial, which is what happened.
Gallucci: An issue like that always comes out of left field. When we were able to step back and hear what the judge had to say about it, and then see that very few jurors paid any attention to it, I think everybody was comfortable moving forward.
How did you feel when the verdict was announced? And how did you celebrate?
Gallucci: Honestly, the first thing I did was look across the table at the clients. As much as we’ve lived this for four years, they have lived it with the community for over a decade. And you could see, immediately, there was a sense of hope in their ability to truly address this epidemic in their communities. So, from my own standpoint, there was an overwhelming sense of relief — that these clients realized there was hope for them in their communities.
We’re going to bore you with how we celebrated. I went home, and my wife and daughter had a cake for me. So I had dinner with my mother, wife and daughter, and we had a cassata cake.
A cassata cake?
Gallucci: It’s Italian.
Weinberger: It’s whipped cream and strawberries and yellow cake
Gallucci: And custard.
What about you, Pete? What was your reaction and celebration?
Weinberger: So, because Frank had the boots-on-the-ground relationship with the clients, I thought more about the national implications. As liaison counsel for the MDL, knowing all the work that’s been done by literally hundreds of lawyers on our side, and the amount of money that’s been invested by each of the 21 law firms on the plaintiffs’ executive committee, I was almost emotionally overwhelmed by the verdict and its potential impact.
And it wasn’t just that we won. It was that we put on a case for seven weeks, and to convince 12 people in a civil case unanimously to come to a verdict is an almost like an overwhelming task. But when [deliberations] took six days, and they came in with that verdict, I mean, literally it was the most emotional I’ve ever felt after a jury returning a verdict. And I’ve tried a lot of cases to juries over more than 40 years. I was literally emotionally overwhelmed.
OK, wow. And so, did you — did you have some cake as well?
Weinberger: Well, I got together with a couple of my law partners, and with my assistant Sheila [Schebek], who is the glue behind this MDL. She’s the head of our mass tort department, and she’s been a paralegal with us for 30 years. So we all had a very quiet dinner together at a place called Johnny’s on Fulton. It’s a neighborhood Italian restaurant that we frequent that’s well-known in Cleveland.
And our table was near a bar that had a TV. And about every half hour, there was a news story about the case on the TV.
The cases are County of Lake v. Purdue Pharma LPet al., case number 1:18-op-45032; County of Trumbull v. Purdue Pharma LP et al., case number 1:18-op-45079; and In re: National Prescription Opiate Litigation, case number 1:17-md-02804, all in the U.S. District Court for the Northern District of Ohio.
–Editing by Orlando Lorenzo.