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22 ■ JUNE 28, 2021 NEWS

■ From OPIOID on PAGE 21 from accessing the court. We simply require what
vaccines for jurors” but that courts could ask jurors the CDC requires, and that is the masking and dis-
about their vaccine status. tancing and sanitation. We’re handling it that way,
“According to AO guidance, being vaccinated for and it’s gone very, very smoothly.”
COVID-19 is not a legal qualification for serving In their opioid motion, the pharmacies cited
on a jury,” a federal court spokesperson wrote in an the Jury Selection and Service Act, which says all
email. “The AO also has advised courts considering citizens should be considered to serve on a jury, se-
such a requirement to monitor whether it impacts lected at random “from a fair cross section of the
the ability to assemble a jury selected at random community.” They noted that only 42.6% of Ohio’s
from a fair cross section of the community.” population was fully vaccinated. That means a sub-
The federal judiciary, however, left the decision stantial amount of the potential jurors would not be
up to the individual districts, only some of which vaccinated by the time they began jury selection in
have issued guidelines specific to vaccines and jury the opioid trial.
service. “Eliminating all those people would not only re-
When the pharmacies asked Polster to reconsider duce the size of the eligible jury pool, it would also
his order, they cited the Northern District of Ohio’s skew the pool in ways that would likely affect the
juror selection plan and its general orders regarding parties’ ability to pick a fair and impartial jury,” they
a coronavirus phased-in recovery plan. wrote.
“As far as defendants can tell, a vaccination re- In particular, the unvaccinated population tends
quirement for jurors is not required by any statute, to be men, Black and younger adults. There also is
rule, or policy,” they wrote. “ample evidence,” they wrote, citing several news
Some federal courts, however, have addressed the articles, that vaccination was based on political and
issue. The Southern District of New York, for in- social views, with the unvaccinated more likely to
stance, has a confidential entry questionnaire that asks be conservative or Republican, many with religious
whether visitors are vaccinated. And, in a COVID-19 reasons for choosing not to get inoculated.
response form, the Southern District of Florida asks “Persons who decline a governmental request to
prospective jurors whether they have been vaccinated. inject an mRNA or other vaccine into their arms
The answers are “yes,” “no” and “prefer not to say.” may have a useful perspective about a governmental
Chief Judge Freda Wolfson of the District of New claim that pharmaceutical companies should pay for
Jersey said that her federal district does not ask pro- harms caused by persons who abused prescription
spective jurors about their vaccination status. “Thus, opioids,” they wrote. “Members of the anti-vacci-
we do require everyone in the courtroom, including nation community might well have different views
jurors, to wear masks. We also socially distance our about prescription-opioid use and abuse when com-
jurors by seating them in every other seat in the jury pared with the vaccinated population.”
box. Not one juror in my 8-day criminal trial voiced Lawyers may get to find out. In Wednesday’s or-
any objection to wearing a mask. During individual der, Polster left open the possibility that they could
‘for cause’ questioning of our jurors, a juror would ask prospective jurors about their vaccine status.
wear a clear mask which the Court supplied.” “The court will later discuss with counsel the ex-
Sabraw, of the San Diego-based federal court, in- tent to which they may inquire about vaccination
sisted that court officials in his district would not ask status on the jury questionnaire and at voir dire,”
jurors about their vaccine status. Polster wrote. ■
“Generally, asking people about vaccination, in my
view, is not a good way to go,” he said. “We’re finding Amanda Bronstad is the ALM staff reporter cover-
that most of our jurors are vaccinated. They’re vol- ing class actions and mass torts nationwide. She
unteering that information, but certainly there are writes the email dispatch Law.com Class Actions:
many who are not. We don’t ask. We don’t bar them Critical Mass. She is based in Los Angeles.
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