As the opioid crisis ravaged communities across the United States two years ago, the U.S. Attorney for the Eastern District of Texas at the time, Joe Brown, set about fixing blame on Walmart, alleging its pharmacies were filling prescriptions from “pill mill” doctors facilitating drug misuse and abuse by overprescribing narcotics.
The Department of Justice has also had a long-running civil investigation into Walmart’s pharmacies. The Bentonville, Arkansas, retail behemoth is now preemptively suing the Department of Justice, asking a federal district court to untangle the contradictory laws that have left Walmart open to investigation. The “DOJ is threatening to sue Walmart for not going even further in second-guessing doctors,” Walmart said in a press release, while “state health regulators are threatening Walmart and our pharmacists for going too far and interfering in the doctor-patient relationship.”
Walmart has been tightening its policies on filling opioid prescriptions, according to its “opioid stewardship initiative” – not just questioning particular scripts, but refusing to fill any prescription for controlled substances from doctors about whom the company had doubts. In part to appease federal regulators, Walmart applied various restrictions on controlled substances. But soon state authorities accused the company of violating state regulations – even of committing crimes – by blocking prescriptions or even just filling smaller quantities of drugs than doctors had specified. The company also received pushback from medical groups that accused Walmart of trampling on doctors’ prescribing prerogatives.
Walmart’s damned-if-you-fill-the-script, damned-if-you-don’t bind reflects the problems faced by large chain pharmacies, which also include CVS and Walgreens. They are among the chief targets in opioid-related lawsuits that may be some of the most complicated and expensive litigation in American history – the so-called National Prescription Opiate Litigation. The companies didn’t get there on their own: Contradictory regulations, demands, and threats from Washington and the states have combined to create a tangle trapping the pharmacies, leaving them exposed to plaintiffs’ lawyers in a massive “multi-district litigation” playing out in an Ohio court.
The nationwide tobacco litigation of the 1990s was complex enough, involving the states and a handful of cigarette manufacturers. By contrast, plaintiffs in the National Prescription Opiate Litigation – counties, boroughs, parishes, cities, townships, municipalities, and villages – number in the thousands. They are looking for just about everyone in the opioid business – manufacturers, distributors, and retailers – to pay for the opioid misuse that has been so costly to society. Plaintiffs’ lawyers are seeking damages well into the billions.
The court case consolidated in 2017 was supposed to get rolling in November, but has recently been postponed to the spring out of concerns COVID-19 would spread through a crowded courthouse.
The “multi-district litigation” follows efforts by federal prosecutors who have tried to build both criminal and civil cases against pharmacies, including Walmart, for not acting soon enough in blocking all prescriptions written by doctors pharmacists had questions about.
Pharmacies, though, are a curious place to assign blame for the opioid epidemic. They don’t make the drugs: Controlled substances are