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Two Counties Sue Walmart Over Opioids

3 min read

Two Arkansas counties have sued Walmart Inc. over allegations that the Bentonville retailer contributed to the opioid epidemic by failing to maintain tight controls when filling opioid prescriptions.

Pulaski and Jefferson counties filed the lawsuit against Walmart in July, making them the latest two government entities to sue the retailer over allegations it contributed to the opioid crisis.

“Walmart funneled far more opioids into Arkansas and the Counties than could have been used for legitimate medical purposes, and ignored other red flags of suspicious orders,” the suit said.

The case was first filed in Jefferson County Circuit Court and has since been transferred to the court handling the federal multidistrict litigation that includes more than 2,000 similar lawsuits in Ohio.

The counties said Walmart was responsible for many of the opioids purchased and dispensed in Arkansas in 2006-14, years for which data is available.

During that period Walmart shipped 242.9 million dosage units of opioids to Arkansas stores and sold 249.2 million dosage units in Arkansas, which is more than any other pharmacy in the state, which has a population of about 3 million. A dose unit is a single pill, capsule or other form of administering opioids, the lawsuit said.

The counties said that Walmart should have known that most of the opioids were most likely being diverted.

“Yet, it did not take meaningful action to investigate or to ensure that it was complying with its duties and obligations with regard to controlled substances,” the suit said. The counties are represented by Dustin McDaniel of McDaniel Wolff & Benca of Little Rock and Elizabeth Smith of Motley Rice of Washington, D.C.

Walmart didn’t immediately return messages for comment. But in court filings in Ohio it denied the allegations of wrongdoing.

“Walmart’s pharmacies cannot dispense controlled substances without a valid prescription, and as a distributor, Walmart has no capacity to influence the prescribing decisions of medical professionals,” it said in a July 2019 filing in U.S District Court in Ohio.

Walmart asked to be dismissed as a defendant. Other pharmacy chains that have been sued in the multidistrict action include Walgreens, Rite Aid and CVS.

In January, U.S. District Judge Dan A. Polster denied Walmart’s request.

The pharmacists are in a difficult position, said Jennifer Oliva, an associate professor at Seton Hall University School of Law in New Jersey. She has written about the opioid litigation.

“These lawsuits assume that the pharmacists are supposed to be policing … the doctors,” she said. “And that’s not really what pharmacists do. They double-check to make sure there’s not going to be complications or adverse results from someone because they know a lot about chemistry and pharmacology.”

She said pharmacists also aren’t supposed to be double-checking or second-guessing a doctor’s determination about whether an opioid was appropriately prescribed in the first place.

In the lawsuit, Walmart is accused of being both the distributor by delivering opioids to its pharmacies and the dispenser by filling prescriptions through its own pharmacies.

Since Walmart is also named as distributor in the 68-page lawsuit, the plaintiffs are pursuing the theory that Walmart should have known that it was providing prescriptions to individual patients that were more frequent than appropriately prescribed opioids might warrant, said Andrew S. Pollis, a professor at Case Western Reserve University School of Law in Cleveland who has followed the cases.

He said it is hard for plaintiffs to show damages. But last year, an Oklahoma judge ordered Johnson & Johnson to pay about $570 million for its part in that state’s opioid crisis. The pharmaceutical giant has appealed the ruling.

Among the allegations Jefferson and Pulaski counties are making against Walmart are negligence and public nuisance.

The counties didn’t specify a dollar amount for damages, but they would include increased emergency response costs, law enforcement costs and related court costs allegedly “caused by Walmart’s conduct in creating and exacerbating the opioid epidemic.”

Pollis said that most of the entities suing companies for their role in the opioid crisis are hoping the cases settle.

“If they settle, then you don’t have to worry about proof,” he said. “It just becomes standing in line waiting for the payout.”

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