Walmart Seeks Dismissal of U.S.’s Opioid Suit, Calling it ‘Sensationalist,’ ‘Hollow’

Walmart is seeking dismissal of a suit brought by the United States that alleged the retail giant’s pharmacies have violated the Controlled Substances Act (CSA) thousands of times over through its distribution of opioids.

As Law Street Media reported Dec. 23, 2020, the U.S.’s complaint argued that Walmart, in its capacity as a pharmacy operator, “knowingly filled thousands of controlled substance prescriptions that were not issued for legitimate medical purposes or in the usual course of medical practice, and that it filled prescriptions outside the ordinary course of pharmacy practice.” Further, the U.S. alleged that Walmart failed to report hundreds of thousands of “suspicious orders” that it was obliged to report to the Drug Enforcement Administration.

In its motion to dismiss, Walmart claimed that the government’s suit is based on “a set of legal theories that stretch the CSA and (DEA) regulations past the breaking point” and that it “fundamentally misconceives the obligations of pharmacies and pharmacists under federal law.” Prior to the U.S. even filing its December 2020 complaint, Walmart saw the writing on the wall in October and filed its own complaint for declaratory relief in a move to preemptively circumvent litigation, seeking resolution of allegedly unclear expectations for pharmacists and pharmacies in using their judgment in filling prescriptions, as Law Street Media reported.

Largely echoing its earlier action seeking declaratory relief, Walmart’s argument for dismissal rests on the limits of pharmacists’ responsibilities under the CSA.

“Pharmacists are not licensed to practice medicine and rarely have authority to examine patients,” according to the motion. “Presented with prescriptions from state-licensed and DEA-registered doctors, pharmacists are poorly positioned to second-guess those doctors’ medical judgments, which are highly individualized based on each patient’s unique circumstances.”

Notwithstanding pharmacist responsibility, Walmart argued that the government’s complaint could not sufficiently allege that any pharmacist knowingly filled an invalid prescription in the first place, contending that it “identifies types of prescriptions that may be—but are not necessarily— problematic” that Walmart pharmacists either filled or refused to fill based on judgment. Walmart goes further, asserting that the government failed to allege whether Walmart pharmacists knew that they may be filling invalid prescriptions.

“The Government’s Complaint is sensationalist but ultimately hollow, resting on legally impermissible shortcuts that are designed to cast aspersions on large numbers of prescriptions without actually alleging that individual Walmart pharmacists ever knowingly filled invalid ones,” according to the motion.

Among the more case-specific claims made by Walmart were its interpretations of broader case law and statute to support its argument against the government’s alleged “sweeping attempts” to impose liability.

Walmart is represented by Richards, Layton & Finger, Jones Day, and Wilmer Cutler Pickering Hale and Dorr.