Walmart v. DOJ: Should Retailers Be Held Liable for the Opioid Crisis?     

The pains of the opioid crisis are still being felt across the country. Meanwhile, regulators, states, and the U.S. government are still in the process of holding individuals and organizations responsible for the pain and suffering they have caused over the last 20-plus years.

The U.S. Department of Justice recently announced a settlement with OxyContin maker Perdue Pharma, but there’s plenty of blame to go around. Regulators could also go after major retailers and pharmacy chains that sold dangerous prescriptions to patients at risk of addiction, including Walmart, the nation’s largest retailer.

Instead of waiting for a possible indictment from the Justice Department, Walmart preemptively filed suit against the government for failing to impose safety restrictions on individual doctors and providers prescribing opioids that could have prevented the crisis.

So, who deserves more blame?

Walmart Goes to Court

On Thursday, October 22nd, Walmart filed suit in court asking for a declaration from a federal judge that would state there is no legal basis for the government to seek civil damages from the company for its alleged role in the opioid pandemic. If approved by the judge, Walmart would be essentially off the hook for its role in the crisis. Walmart is also asking the court to clarify its legal rights and duties under the Controlled Substance Act, which regulates the distribution and handling of drugs like opioids.

From a legal perspective, Walmart wants to make sure that it’s in the clear in case the Department of Justice decides to indict the retail giant down the line.

It all started back in 2016 when Walmart says regulators first started looking into the corporation and its handling of prescription painkillers like OxyContin and Oxycodone. The investigation was conducted by the U.S. Attorney’s office for the Eastern District of Texas. At the time, Walmart said it willfully cooperated with the probe, despite calling it a “misguided criminal investigation.”

In the spring of 2018, the U.S. Attorney’s office for the Eastern District of Texas announced that it plans to indict Walmart for its role in the opioid pandemic, including failing to review suspicious prescriptions being filled in stores all over the country. Walmart operates over 5,000 pharmacies across the U.S.

However, the case went nowhere. According to reporting from ProPublica back in March, Joe Brown, then U.S. attorney for the Eastern District of Texas office, spent years investigating Walmart and its operations, but the case eventually fell apart after company executives reportedly reached out to senior officials in the Department of Justice, asking them not to go forward with the charges. 

The charges were eventually dismissed, and Brown resigned from his position two months later.

Should Pharmacies Be Held Responsible?

Recent developments could pave the way for a lengthy legal fight over who deserves blame for the opioid epidemic, which continues to kill tens of thousands of Americans every year.

Two counties in Ohio first filed suit against CVS, Rite Aid, Walgreens, Giant Eagle and Walmart back in May of this year for allegedly failing to review suspicious prescriptions across the northern region of the state. The complaint was filed in court in Cleveland and the case is expected to go to trial in May 2021.

Ohio continues to be one of the main epicenters of the crisis. It had the fourth highest rate of opioid-related deaths in 2018, according to data from the CDC. State and federal judges across Ohio have been overseeing opioid-related lawsuits for years.

Back in January, as part of a different suit, pharmacy chains argued in court that prescribers should ultimately bear the responsibility for the opioid epidemic, not the stores that fill these prescriptions. Companies like Walmart and CVS say they are in an “untenable position,” as regulators continue to go after those that contributed to the crisis.

They argue they shouldn’t be held criminally or financially liable for failing to second-guess prescriptions ordered by doctors that are currently in good standing with the U.S. Drug Enforcement Administration. Pharmacy chains say the government should have penalized providers that prescribed large quantities of opioids to prevent stores from selling the drugs to the public. In the recent suit filed by Walmart, the company argued that around 70% of providers that prescribed opioids are still in good standing with the DEA.

If pharmacies refuse to fill these prescriptions, they argue they “may face the wrath of state medical boards, the medical community at large, individual doctors, and patients,” so they say they don’t really have the option of saying no.

Doctors and providers that prescribed these pills may deserve the bulk of the blame, but that doesn’t mean retailers like CVS, Walgreens, and Walmart should be off the hook. These companies have a vested financial interest in selling as many drugs as possible. In 2018, providers across the country wrote prescriptions for opioid pain medication at a rate of 51.4 prescriptions dispensed per 100 people. That’s just over one pill for every two people.

From 2006 to 2012, the height of the opioid epidemic, Walgreens bought about 13 billion pills, around 3 billion more than CVS, the company’s closest competitor in the market. Over this period, Walgreens more than doubled its purchases of Oxycodone. 

A recent New York Times article shows how the small town of Port Richey, Florida, with a population of just 2,831, received over 3,271 bottles of Oxycodone a month, more than enough for the town’s entire population. At the time, Walgreens employees say they were shocked at the number of prescriptions the generic pharmacy was selling to the public, despite the risks.

Back in 2018, Walmart introduced new safety measures to prevent the misuse and abuse of prescription opioids, but more work needs to be done. In the end, the Department of Justice may have good reason to take major retailers to court, especially as these drugs continue to wreak havoc on our country.