"The issue had not been raised before, and defendants had no notice that the court was considering it," wrote the pharmacies in their motion. "In short, requiring vaccinations for all jurors will drastically reduce the eligible jury pool, and the remaining pool of eligible jurors is highly unlikely to reflect the community as a whole."

Polster, who is based in the Northern District of Ohio's Cleveland courthouse, quickly changed his mind and, on Wednesday, granted the defendants' request.

"Pharmacy defendants make good points," he wrote.

The move comes as judges and court officials are returning to the courthouse for jury trials, many of them in regions of the country where the COVID-19 pandemic has subsided significantly. But bringing members of the community back together raises the question of whether their vaccine status could determine whether they serve on a jury.

"It's kind of a hotly debated question, and different districts will handle it differently," said Dana Sabraw, chief judge of California's Southern District, in a State of the Court address earlier this year to the San Diego County Bar Association. He added that courts have statutory and constitutional concerns. "We don't get to serve only those we want to serve, so we have to be careful in that area."

Courts have received some guidance. A May 4 publication from the National Center for State Courts found that, while court officials could ask jurors about their vaccination status, they must consider impacts on the potential jury pool.

"Restricting the jury pool to persons who are fully vaccinated may make it more difficult to secure enough prospective jurors to select juries," the paper said. "Excluding persons who are not fully vaccinated may make the jury pool less likely to reflect a fair cross section of the community, which in turn may also increase the risk of jury challenges."

Many state courts have taken varying approaches. New Jersey's judiciary clarified this month that it would not ask jurors about their vaccination status, while California's San Luis Obispo County Superior Court offers the vaccine to jurors. As of June 18, Contra Costa County Superior Court, also in California, has offered vaccinated jurors a "self-certification" form they can complete in order to serve on a jury without having to wear a mask.

The federal guidance has been less clear. On May 14, the Administrative Office of U.S. Courts advised district courts that it "has not endorsed mandating vaccines for jurors" but that courts could ask jurors about their vaccine status.

"According to AO guidance, being vaccinated for COVID-19 is not a legal qualification for serving on a jury," a federal court spokesperson wrote in an email. "The AO also has advised courts considering such a requirement to monitor whether it impacts the ability to assemble a jury selected at random from a fair cross section of the community."

The federal judiciary, however, left the decision up to the individual districts, only some of which have issued guidelines specific to vaccines and jury service.

When the pharmacies asked Polster to reconsider his order, they cited the Northern District of Ohio's juror selection plan and its general orders regarding a coronavirus phased-in recovery plan.

"As far as defendants can tell, a vaccination requirement for jurors is not required by any statute, rule, or policy," they wrote.

Some federal courts, however, have addressed the issue. The Southern District of New York, for instance, has a confidential entry questionnaire that asks whether visitors are vaccinated. And, in a COVID-19 response form, the Southern District of Florida asks prospective jurors whether they have been vaccinated. The answers are "yes," "no" and "prefer not to say."

Chief Judge Freda Wolfson of the District of New Jersey said that her federal district does not ask prospective jurors about their vaccination status. "Thus, we do require everyone in the courtroom, including jurors, to wear masks. We also socially distance our jurors by seating them in every other seat in the jury box. Not one juror in my 8-day criminal trial voiced any objection to wearing a mask. During individual 'for cause' questioning of our jurors, a juror would wear a clear mask which the Court supplied."

Sabraw, of the San Diego-based federal court, insisted that court officials in his district would not ask jurors about their vaccine status.

"Generally, asking people about vaccination, in my view, is not a good way to go," he said. "We're finding that most of our jurors are vaccinated. They're volunteering that information, but certainly there are many who are not. We don't ask. We don't bar them from accessing the court. We simply require what the CDC requires, and that is the masking and distancing and sanitation. We're handling it that way, and it's gone very, very smoothly."

In their opioid motion, the pharmacies cited the Jury Selection and Service Act, which says all citizens should be considered to serve on a jury, selected at random "from a fair cross section of the community." They noted that only 42.6% of Ohio's population was fully vaccinated. That means a substantial amount of the potential jurors would not be vaccinated by the time they began jury selection in the opioid trial.

"Eliminating all those people would not only reduce the size of the eligible jury pool, it would also skew the pool in ways that would likely affect the parties' ability to pick a fair and impartial jury," they wrote.

In particular, the unvaccinated population tends to be men, Black and younger adults. There also is "ample evidence," they wrote, citing several news articles, that vaccination was based on political and social views, with the unvaccinated more likely to be conservative or Republican, many with religious reasons for choosing not to get inoculated.

"Persons who decline a governmental request to inject an mRNA or other vaccine into their arms may have a useful perspective about a governmental claim that pharmaceutical companies should pay for harms caused by persons who abused prescription opioids," they wrote. "Members of the anti-vaccination community might well have different views about prescription-opioid use and abuse when compared with the vaccinated population."

Lawyers may get to find out. In Wednesday's order, Polster left open the possibility that they could ask prospective jurors about their vaccine status.

"The court will later discuss with counsel the extent to which they may inquire about vaccination status on the jury questionnaire and at voir dire," Polster wrote.