Update: Walmart Opposes Claims It Failed to Timely Release Documents in Opioid Crisis MDL

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Pharmacy Opioid Crisis Class Action Lawsuits Overview: 

• Who: Multidistrict litigation (MDL) is underway for Walmart, Walgreens, CVS, and Giant Eagle over claims their pharmacies helped exacerbate a national opioid crisis. 
• Why: Plaintiffs claim the pharmacies colluded with drugmakers to increase the prevalence of prescription opioid use.
• Where: The MDL is being held in Ohio federal court.

Multidistrict litigation being conducted against Walmart, CVS, Walgreens, and Giant Eagle pharmacies over their roles in the country’s ongoing opioid crisis is officially underway. 

Walmart implored a federal judge in Ohio this week to disregard arguments by Ohio’s Lake and Trumbull counties that documents produced by a Walmart compliance director should result in a default judgement or mistrial against the company.

Lake and Trumbull counties claim Walmart has acted in bad faith and disregarded its discovery obligations by releasing hundreds of thousands of documents in the months leading up to the trial and is now continuing to do so during the trial itself.

“Since trial commenced, Walmart has produced 1,102 documents,” the counties said. “These late productions are part of a larger pattern of withholding important evidence from the plaintiffs.” 

Walmart argues, however, that the documents in question have no relation with the counties, that they have already been public for months, and that the counties are simply using the documents as a way to “gin up” their request for sanctions against the company. 

“Walmart has never acted in bad faith, and in fact an additional factor — ‘whether the opposing party suffered prejudice’ — is not even present here,” the company said. 

The documents the counties argue have been released late include emails from Walmart that allegedly show they knew about pill mills, suspicious business dealings, and that patients were crossing state lines to acquire prescriptions. 

Opioid Crisis Trial Begins

A federal jury in Cleveland, meanwhile, have begun hearing allegations that Walgreens colluded with Purdue Pharma to drive prescription sales by giving it access to its sales data and allowing the drug manufacturer to sell to its supervisors. 

Dr. Anna Lembke, a Stanford University psychiatrist and addiction specialist, took the stand earlier this month to argue that Walgreens helped exacerbate the opioid crisis in Lake and Trumbull counties through its dealings with Purdue Pharma. 

“What is really important, and also was very surprising to me in my research, was that Purdue sales reps were allowed by Walgreens to promote OxyContin — Purdue’s product — to Walgreens’ healthcare supervisors,” Lembke said.

Lembke also testified that Walmart and Giant Eagle pharmacies worked with a company called Adheris Wealth to help ensure patients continued taking and refilling their opioid prescriptions.

Patients targeted by the so-called “prescription adherence program” were 5.2 percent more likely to remain on their prescriptions and 1.4 percent more likely to take on a new prescription, according to Lembke. 

“When it comes to opioids, you don’t need and shouldn’t have adherence programs; opioids sell themselves,” Lembke said. “The real challenge is getting patients who have been on opioids off of them again.” 

Law Firm Accused of Hiding Documents in Opioid Crisis Lawsuit

Allegations of document withholding were also addressed by a federal judge in New York last week in response to claims that law firm Arnold & Porter failed to divulge key documents from its client Endo Pharmaceuticals before and during an ongoing MDL related to its role in the opioid crisis.

The retired judge tasked to referee the claims ruled Arnold & Porter did not properly alert authorities about the documents — which included an Endo Pharmaceuticals sales rep recounted promoting opioids at a doctor’s office frequented by “crackheads.” 

“(Arnold & Porter) slipped those voluminous documents into the MDL, while failing to give this court notice of their existence, perhaps in the hope that the plaintiffs counsel was (too) preoccupied with the ongoing trial to notice them,” the judge wrote. 

The judge endorsed relief for the New York and Long Island counties of Nassau and Suffolk in the form of attorneys fees, and said monetary sanctions should be awarded against Arnold & Porter on account of the disruption withholding the documents caused.

Arnold & Porter ultimately released a statement claiming victory, however, after the judge struck down multiple other requests for relief, including that the firm be disqualified. 

“While we do not agree with all of the statements made in this report, we are gratified that the referee rejected the vast majority of plaintiffs’ unfounded allegations and attacks on the integrity of our firm,” Arnold & Porter said. 

A New York federal judge had already made it clear he was not necessarily letting Endo Pharmaceuticals off the hook for its role in withholding the documents, either, saying in August that the drugmaker disobeyed a stopgap remedy and knew its lawyers had been dishonest in a separate opioid case. 

“There hasn’t been compliance,” the judge said at the time. “(As for) whether it amounts to contempt, the court will reserve its determination.”

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The plaintiffs in Ohio are represented by Simmons Hanly Conroy, Motley Rice LLC, Farrell & Fuller LLC, The Lanier Law Firm, Spangenberg Shibley & Liber, Plevin & Gallucci Co. LPA, and Napoli Shkolnik PLLC.

New York is represented by John Oleske of the New York Office of the Attorney General. 

The Pharmacy Opioid Crisis Lawsuits are County of Lake v. Purdue Pharma LP et al., Case No. 1:18-op-45032, County of Trumbull v. Purdue Pharma LP et al., Case No. 1:18-op-45079, and In re: National Prescription Opiate Litigation, Case No. 1:17-md-02804, all in the U.S. District Court for the Northern District of Ohio.

The Endo Pharmaceutical Cases are In re: Opioid Litigation, case number 400000/2017, County of Suffolk v. Purdue Pharma LP et al., case number 400001/2017, County of Nassau v. Purdue Pharma LP et al., case number 400008/2017, and State of New York v. Purdue Pharma LP et al., case number 400016/2018, in the Supreme Court of the State of New York, County of Suffolk.

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