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Crime and Courts

Federal prosecutors in Colorado, across the U.S. sue Walmart over role in opioid crisis

The Justice Department alleges Walmart violated federal law by selling thousands of prescriptions for controlled substances that its pharmacists "knew were invalid"

In this April 2, 2018 photo, pharmacist Steve Protzel poses for photos holding a bottle of OxyContin at Daniel's Pharmacy in San Francisco. (Jeff Chiu, AP file photo)

By Michael Balsamo, The Associated Press and Jesse Paul, The Colorado Sun

WASHINGTON — The Justice Department is suing Walmart, alleging the company unlawfully dispensed controlled substances through its pharmacies, helping to fuel the opioid crisis in America.

The civil complaint being filed Tuesday points to the role Walmart’s pharmacies may have played in the crisis by filling opioid prescriptions and by unlawfully distributing controlled substances to the pharmacies during the height of the opioid crisis. Walmart operates more than 5,000 pharmacies in its stores around the country.

The Justice Department alleges Walmart violated federal law by selling thousands of prescriptions for controlled substances that its pharmacists “knew were invalid,” said Jeffrey Clark, the acting assistant attorney general in charge of the Justice Department’s civil division.

MORE: Read the lawsuit.

Federal prosecutors also alleges that Walmart also “systematically violated its legal obligation to detect suspicious orders of controlled substances” and report them to the federal government, Clark said.

“Walmart knew that its distribution centers were using an inadequate system for detecting and reporting suspicious orders,” said Jason Dunn, the U.S. attorney in Colorado. “As a result of this inadequate system, for years Walmart reported virtually no suspicious orders at all. In other words, Walmart’s pharmacies ordered opioids in a way that went essentially unmonitored and unregulated.”

Jason Dunn, Colorado’s U.S. attorney, photographed on Friday, April 12, 2019. (Jesse Paul, The Colorado Sun)

The 160-page suit alleges that Walmart made it difficult for its pharmacists to follow the rules, putting “enormous pressure” on them to fill a high volume of prescriptions as fast as possible, while at the same time denying them the authority to categorically refuse to fill prescriptions issued by prescribers the pharmacists knew were continually issuing invalid invalid prescriptions.

Walmart fought back in an emailed statement to The Associated Press, saying that the Justice Department’s investigation is “tainted by historical ethics violations.” It said the “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.”

Walmart noted it always empowered its pharmacists to refuse to fill problematic opioids prescriptions, and said they refused to fill hundreds of thousands of such prescriptions. Walmart also noted it sent the Drug Enforcement Administration tens of thousands of investigative leads, and it blocked thousands of questionable doctors from having their opioid prescriptions filled at its pharmacies.

In an interview with The Colorado Sun, Dunn said Tuesday that federal prosecutors in Colorado were brought on to help with the case because of their expertise surrounding the opioid crisis. The lawsuit has been years in the making.

“For many years our office has taken a very aggressive approach in opioid investigations, both criminally and civilly,” he said.

AP reported the news of the lawsuit ahead of the Justice Department’s public announcement, citing a person who could not discuss the matter publicly before the announced move. The person spoke to the AP on condition of anonymity.

While the lawsuit is national in scope, it does include specific allegations against Walmart in Colorado.

The 160-page legal filing alleges that in 2015, Walmart failed to notify other pharmacies about a Colorado Springs-area nurse practitioner’s suspicious prescription that one of its stores rejected. The nurse practitioner had a history of writing dubious opioid prescriptions and was repeatedly reported by Walmart pharmacists to the company, according to the legal action.

But just three days after the suspicious prescription was rejected at one store in Colorado Springs, it was filled at a nearby Walmart in Falcon, the lawsuit said.

“Between November 2013 and March 2016, despite Walmart’s knowledge of red flags indicating a very high probability that (the nurse practitioner) regularly issued invalid prescriptions for controlled substances, Walmart filled more than 5,000 controlled-substance prescriptions issued by (the nurse practitioner),” the lawsuit says. “More than 400 were for dangerous combinations, including prescriptions for two immediate-release opioids simultaneously or close in time and prescriptions for dangerous and abused ‘cocktails’ of drugs.”

The nurse practitioner surrendered his nursing license in 2017 and admitted that his treatment plans were inappropriate.

In another instance, the lawsuit alleges Walmart stores across the country — including in Colorado — continued to fill prescriptions from a family medicine doctor in the Miami area despite some pharmacists working for the company raising concerns. The doctor was later indicted and pleaded guilty earlier this year to conspiracy to dispense and distribute oxycodone, according to the legal action.

“Walmart has over 100 pharmacies in Colorado,” Dunn said. “They’re one of the absolute largest chains in Colorado.”

The Justice Department’s lawsuit comes nearly two months after Walmart filed its own preemptive suit against the Justice Department, Attorney General William Barr and the Drug Enforcement Administration.

In its lawsuit, Walmart said the Justice Department’s investigation – launched in 2016 – had identified hundreds of doctors who wrote problematic prescriptions that Walmart’s pharmacists should not have filled. But the lawsuit charged that nearly 70% of the doctors still have active registrations with the DEA.

Walmart’s lawsuit alleged the government was blaming it for the lack of regulatory and enforcement policies to stem the crisis. The company is asking a federal judge to declare the government has no basis to seek civil damages; the suit remains ongoing.

The initial investigation was the subject of a ProPublica story published in March. ProPublica reported that Joe Brown, then U.S. attorney for the Eastern District of Texas office, spent years pursuing a criminal case against Walmart for its opioid prescription practices, only to have it stymied after the retail giant’s lawyers appealed to senior officials in the Justice Department.

Two months later, Brown resigned. He didn’t give a reason for his departure except to say he would be “pursuing opportunities in the private and public sectors.” Brown went into private practice in the Dallas area.

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