Walmart is suing the U.S. government as a pre-emptive strike in an anticipated legal battle over the retailer’s responsibility in the opioid-abuse crisis.
The government is expected to take civil action against the world’s largest retailer, seeking big financial penalties for the role its pharmacies may have played in the crisis by filling opioid prescriptions.
But on Thursday, Walmart filed a lawsuit saying that the Justice Department and the Drug Enforcement Administration are blaming the company for the government’s own lack of regulatory and enforcement policies to stem the crisis.
Walmart says it is seeking a declaration from a federal judge that the government has no lawful basis for seeking civil damages from the company. It is also seeking to clarify its legal rights and duties under the Controlled Substance Act.
Walmart operates more than 5,000 pharmacies in its stores around the country.
“Walmart and its pharmacists find themselves in an untenable position,” the company based in Bentonville, Arkansas, says in the lawsuit filed in the U.S. District Court in the Eastern District of Texas. “Under defendants’ sweeping view, Walmart and its pharmacists may be held liable — perhaps even criminally — for failing to second-guess DEA-registered doctors and refuse their prescriptions. But if pharmacists do so, they may face the wrath of state medical boards, the medical community at large, individual doctors, and patients.”
Walmart says in the suit that the Justice Department identified hundreds of doctors who have written problematic prescriptions that Walmart’s pharmacists allegedly should not have filled. But nearly 70% continue to have active registrations with the DEA, the lawsuit says.
“In other words, defendants want to blame Walmart for continuing to fill purportedly bad prescriptions written by doctors that DEA and state regulators enabled to write those prescriptions in the first place and continue to stand by today,” the suit says.
The opioid crisis has been one of the most devastating public health emergencies of the 21st century. In its ongoing series examining who is to blame for the opioid epidemic, 60 Minutes reports that in 2018 alone, 46,802 people in the U.S. died from an opioid overdose, and health care providers across the country wrote prescriptions for opioid pain medication at a rate of 51.4 prescriptions dispensed per 100 people.
Impact on Ohio
In the latest phase of lawsuits, large pharmacy chains are being scrutinized for their role in the crisis. Ohio, which had the country’s fourth highest rate of opioid-related deaths in 2018, according to data from the Centers of Disease control, has been the center of continuous opioid-related lawsuits.
Most recently, two Ohio counties filed a suit in May against CVS, Rite Aid, Walgreens, Giant Eagle and Walmart for their alleged failure in monitoring suspicious orders at their stores. The complaint was filed in a federal court in Cleveland and is set to go to trial in May 2021.
Pharmacy chains argued in federal court in January that doctors and other health care practitioners who write prescriptions bear ultimate responsibility for improper distribution of opioids to patients, not pharmacists who are obliged to fill those prescriptions.
The Walmart lawsuit names the Justice Department and Attorney General William Barr as defendants. It also names the DEA and its acting administrator, Timothy Shea.
In the suit, Walmart describes a government probe of the company that began in December 2016 and calls it a “misguided criminal investigation” conducted by the U.S. Attorney’s office for the Eastern District of Texas. Walmart says it fully cooperated with the probe.
In the spring of 2018, the AG’s office advised that it intended to indict the company. In August 2018, Walmart said that officials at the Department of Justice recognized that there was no plausible basis for a criminal indictment, and the department formally declined to prosecute Walmart. But the civil investigation continued.
The initial investigation was a subject of a story ProPublica published in March. ProPublica reported that Joe Brown, then U.S. attorney for the Eastern District of Texas office, spent years pursuing a criminal case against Walmart for its opioid prescription practices, only to have it stymied after the retail giant’s lawyers appealed to senior officials in the Justice Department.
Two months later, Brown resigned. He didn’t give a reason for his departure except to say he would be “pursuing opportunities in the private and public sectors” and “some of those will become apparent in the coming days. Brown went into private practice in the Dallas area.
A spokeswoman for the U.S. attorney’s office in Texas that handled the investigation referred questions to the Justice Department in Washington. The Justice Department declined to comment.
Walgreens dominated market
Walgreens dominated the nation’s retail opioid market from 2006 through 2012, buying about 13 billion pills — 3 billion more than CVS, its closest competitor, according to a Drug Enforcement Administration database of opioid shipments. Over those years, Walgreens more than doubled its purchases of oxycodone.
The company had “runaway growth” of oxycodone sales because it continued to send pills to stores “without limit or review,” Edward Bratton, Walgreens manager of pharmaceutical integrity, wrote to another employee in 2013. The email is among thousands of documents recently disclosed in a federal lawsuit that seeks to hold Walgreens and other businesses responsible for the nation’s opioid crisis.