The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Narcotics

DOJ Sues Walmart Over Illegal Opioid Sales

Reprinted with permission from ProPublica

More than two years after the federal government was preparing to indict Walmart on charges of illegally dispensing opioids, the U.S. Department of Justice is finally taking action. But it's seeking a financial penalty, not the criminal sanction prosecutors had pushed for.

On Tuesday, the Department of Justice brought a civil suit against Walmart in U.S. District Court in Delaware, accusing the retailing behemoth of illegally dispensing and distributing opioids, helping to fuel a health crisis that has led to the deaths of around half a million Americans since 1999.

The government accuses the company, which operates one of the biggest pharmacy chains in the country, of knowingly filling thousands of invalid opioid prescriptions, failing to alert the government to dangerous or excessive prescriptions, and pushing pharmacists to work faster and look the other way in order to boost corporate profits.

By law, pharmacists are prohibited from filling prescriptions they know are not for legitimate medical needs. "Walmart was well aware of these rules, but made little effort to ensure that it complied with them," the government said in its suit.

Walmart applied "enormous pressure" on pharmacists to fill prescriptions as fast as they could, while preventing them from halting prescriptions they knew came from bad doctors, the government said. When Walmart pharmacists warned headquarters in Bentonville, Arkansas, about doctors who operated "known pill mills," did "not practice real medicine" and had "horrendous prescribing practices," headquarters ignored their pleas, the lawsuit asserts.

Walmart denounced the suit. "The Justice Department's investigation is tainted by historical ethics violations, and this lawsuit invents a legal theory that unlawfully forces pharmacists to come between patients and their doctors, and is riddled with factual inaccuracies and cherry-picked documents taken out of context," the company said in a statement. In October, aware that a government suit was likely, Walmart took the highly unusual step of preemptively suing the Justice Department. The company argued that it did nothing wrong and, there, too, accused the government of acting unethically. According to Walmart, the federal prosecutors used the threat of a criminal case to try to negotiate higher civil penalties. (Prosecutors deny that claim.)

The case against Walmart originated in the summer of 2016, with an investigation of two Texas doctors, Howard Diamond and Randall Wade, who were prescribing opioids on a vast scale. Federal prosecutors in the Eastern District of Texas eventually brought cases against the pair, accusing them of contributing to multiple deaths. The doctors were subsequently convicted of illegal distribution of opioids, with Wade sentenced to 10 years in prison and Diamond to 20 years. That case uncovered evidence that led prosecutors to investigate Walmart itself.

In 2018, Joe Brown, the Trump-appointed U.S. attorney in the Eastern District of Texas, sought to criminally indict the company over its opioid practices, as detailed in a ProPublica story in March. During this period, as Walmart tried to fend off a criminal case, its lawyers expressed willingness to discuss a civil settlement. The company "stands ready to engage in a principled and reasoned dialogue concerning any potential conduct of its employees that merits a civil penalty," Jones Day partner Karen Hewitt wrote in August 2018 to the head of the criminal division of the Justice Department.

The Texas prosecutors were unswayed by Walmart's arguments. Joined by the head of the Drug Enforcement Administration, Brown's team traveled to Justice Department headquarters in Washington to make an impassioned plea to bring the criminal case.

But Trump appointees at the highest levels of the department — including the deputy attorneys general at different times, Rod Rosenstein and Jeffrey Rosen — stymied the attempt, dictating that Walmart could not be indicted. (Rosen recently was named acting attorney general.) When prosecutors sought to criminally prosecute a Walmart manager, top officials in the Trump Justice Department prevented that, too.

The Justice Department then dragged out civil settlement negotiations. The delays prompted Josh Russ, the head of the civil division in the Eastern District of Texas who had urged bringing a civil suit years ago, to resign in protest. "Corporations cannot poison Americans with impunity. Good sense dictates stern and swift action when Americans die," Russ wrote in his resignation letter in October 2019.

This week's suit largely echoes the allegations that the Eastern District of Texas had made in seeking a criminal case. Legal officials can in some circumstances pursue the same allegations either criminally or civilly, with a higher burden of proof for prosecutors and stiffer potential penalties for defendants when it comes to criminal cases.

In the new suit, prosecutors said Walmart pharmacists routinely filled prescriptions from known "pill mill" doctors. Sometimes those doctors explicitly told their patients to go to Walmart pharmacies, the complaint alleges. Walmart filled prescriptions from doctors even when its pharmacists knew that other pharmacies had stopped filling prescriptions from those doctors.

The suit also details that Walmart's compliance unit based out of its headquarters collected "voluminous" information that its pharmacists were regularly being served invalid prescriptions, but "for years withheld that information" from its pharmacists.

In fact, the compliance department often sent the opposite message. When a regional manager received a list of troubling prescriptions from headquarters, he asked, "Does your team pull out any insights from these we need to highlight?"

In an email cited in the suit, which was first reported by ProPublica, a director of Health and Wellness Practice Compliance at Walmart, responded, "Driving sales and patient awareness is a far better use of our Market Directors and Market manager's time."

Walmart headquarters regularly put pressure on pharmacists to work faster. Managers pushed pharmacists because "shorter wait times keep patients in store," that this was a "battle of seconds" and that "wait times are our Achilles heel!" according to the suit. Pharmacists said the pressure and Walmart's thin staffing "doesn't allow time for individual evaluation of prescriptions," the suit says.

In May, two months after ProPublica published its story, Brown, the U.S. attorney who had pushed for criminal prosecution of Walmart, left his job abruptly. His resignation letter cited the need to "win the fight against opioid abuse in order to save our country" and added that "players both big and small must meet equal justice under the law." Brown did not return a call seeking comment.

Doris Burke contributed reporting.

Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

Even before the coronavirus came to the U.S., we were already facing a nationwide health crisis: addiction and substance abuse. As it was, 18 million Americans said they had misused prescription drugs at least once within the last year. And with the stress of the pandemic -- and all of the turmoil that has happened as a result, including mass job layoffs and widespread closures -- it's no wonder that alcohol consumption and substance use are on the rise. Now that cases are continuing to increase across the country and we lay in wait for a second wave, many experts worry that the problem will get a lot worse before it gets better.

Despite the fact that 22.5 percent of small businesses fail within their first year, there's no doubt that the pandemic has made temporary and permanent business closures much more common than before. Without much financial assistance to speak of, it's no wonder that countless businesses have either shuttered their doors for good or are still on the brink of collapse. Subsequently, at the height of the pandemic, millions of Americans found themselves out of work, with only one small stimulus payment (if that) and a short period of increased unemployment benefits to stay afloat.

That alone could have been enough to convince individuals to turn to drugs or alcohol as a coping mechanism, but there was also the upending of routines to contend with. Although we know that people who participate in regular physical activity have up to a 30 percent lower risk of depression, most gyms and health clubs were forced to close during the early months of the pandemic in order to reduce risk. Social opportunities, in-person classes, and other activities were either canceled or moved online, with special events delayed for months or even years. Even support groups and Alcoholics Anonymous meetings were either made remote or postponed for the time being. Without much to do other than stay home, we saw drinking and drug use skyrocket.

Alcohol sales went through the roof during March and April, but now we're also seeing evidence that drug abuse has followed suit, both in Canada and in the United States. Experts say that the isolation needed to slow the spread of COVID-19 creates a perfect storm for drug misuse and overdoses.

An October briefing from the American Medical Association stated, "In addition to the ongoing challenges presented by the COVID-19 global pandemic, the nation's opioid epidemic has grown into a much more complicated and deadly drug overdose epidemic." The brief also noted that opioid overdose rates had increased in 40 states since the beginning of the pandemic.

Of course, the holiday season can be an especially difficult time for those who struggle with alcoholism and drug addiction. And as we prepare for a devastating second wave of COVID-19, many experts have major concerns about the effect that another round of shut-downs might have on individuals who need addiction treatment and support.

Some have even pointed out that President-Elect Biden will actually be facing two public health crises when he takes office in the United States in January. Not only have 276,000 Americans died from COVID-19, but more than 76,000 U.S. residents died from drug overdoses between April 2019 and April 2020 (the highest number ever recorded in a 12-month period). And while drug addiction is a topic with which Biden is quite familiar, that may not be much comfort to those who are affected first-hand by this disease -- particularly because the plan to curb COVID might include more stringent closures of or lowered accessibility to the services most needed by those with substance use disorders.

In the end, Americans and others around the world really have no choice but to weather the storm and try to hang on until COVID can be brought under control. But that sentiment may not provide much peace of mind for those who are in recovery or family members who worry about a loved one who's struggling.