Chief United States District Judge Colm F. Connolly recently issued a Memorandum Opinion in the ongoing litigation between Walmart and the United States, narrowing the focus of the lawsuit over allegations that Walmart helped to fuel the opioid epidemic in violation of the Controlled Substances Act (CSA). In the initial lawsuit, the Department of Justice (DOJ) alleged that Walmart had a legal obligation to report suspicious orders of opioids that were received by its wholesale drug distribution centers to the Drug Enforcement Administration (DEA) but that the company procedures for such reporting were not sufficient, failing to report “at least hundreds of thousands” of those orders.
In the Order, Connolly dismissed a claim alleged by the United States that Walmart failed to report suspicious prescription drug orders to the DEA and a separate claim that Walmart pharmacists failed to document “red flags” associated with those prescriptions. Connolly noted that the CSA had no requirement that Walmart report suspicious orders until it was amended in 2018 and that Walmart’s wholesale distribution centers stopped distributing controlled substances in early 2018. He also found that the failure of pharmacists to investigate “red flags” was not solely grounds for liability under the CSA.
While Connolly dismissed those two claims alleged by the United States, he did not dismiss a claim that Walmart pharmacists dispensed prescriptions that the company’s compliance personnel knew were not valid to move forward. Additionally, a fourth claim was not part of Walmart’s motion to dismiss and also remains pending, a claim that pharmacists dispensed prescriptions that they themselves knew were invalid as the prescriptions were issued not in the usual course of professional treatment, not for a legitimate medical purpose, or both.
Walmart took the two dismissals as somewhat of a win, saying that the Order “reinforces what we have said all along: the government’s lawsuit is misguided and misapplies the law.” However, the company took issue with the claim Connolly allowed to move forward, saying, that claim “forces pharmacists and pharmacies into second-guessing DEA-approved doctors, and to come between patients and their doctors.”