Cohen will allow Walmart’s top executive to be deposed in Cleveland’s MDL.
Plaintiffs in the multidistrict opioid litigation (MDL) taking place in Cleveland, Ohio, will be able to depose Walmart CEO Doug McMillon despite the company’s objection, federal court special master David Cohen has ruled. Cohen determined there was “reason to believe McMillon had personal knowledge” that would be relevant. Walmart can still seek an overruling from U.S. District Judge Dan Polster.
The MDL consolidates more than 3,000 cases by local and tribal governments against opioid makers and distributors, as well as pharmacies like Rite Aid, Walgreens, and Walmart. A trial on claims against the pharmacies is scheduled for October of this year. The move to depose McMillion came after Walmart was sanctioned for failing to produce in a timely manner what was required of it during discovery.
At the time of the discovery request, Walmart argued Delaware documents were not covered by the orders. However, Delaware Chancery Judge Travis Laster had said of a request for discovery, “I don’t think you can say with a straight face there isn’t any evidence of wrongdoing.” Polster agreed, indicating there was “enough evidence of lax oversight to raise questions about Walmart’s liability.”
During that time, Special Master Cohen said, “The Delaware litigation was, of course, related to Walmart’s prescription policies, since shareholders sought (and obtained) access to corporate records relating to those policies. Walmart’s claim that its nationwide no-fill list is outside of the geographic scope of the MDL discovery order was fully inconsistent with the plain wording of (the order) and its animating logic.”
As a result, plaintiffs were allowed to depose two additional Walmart witnesses for one and a half hours each as a condition of the company’s sanction. The plaintiffs chose Director of Pharmacy Practice Compliance Deborah Mack, and McMillon.
Walmart immediately objected, calling the request “harassing on its face” and quoting a 2002 ruling by U.S. District Judge Sarah Evans Barker in the Southern District of Indiana in an MDL over Bridgestone tires which stated that “high level executives are vulnerable to numerous, repetitive, harassing, and abusive depositions.”
“All of these factors (in the referenced case, which ultimately allowed for the deposition of a top executive) weigh in favor of allowing McMillon’s deposition here,” Special Master Cohen wrote. “Plaintiffs offer evidence and colorable argument that McMillon has personal knowledge about and involvement in Walmart’s adoption and use of Blanket Refusals to Fill and Blocked Prescribers Lists.”
Cohen also contended that the retailer “resorted to contortions and convoluted or illogical interpretations of the order to contest production of the documents.” He wrote, “It is vexatious for Walmart to reach and pretend to see exceptions where none exist, and then use these phantom exceptions as a means to delay or avoid complying with clear court orders.” Cohen ruled that Walmart must file any objection by June 23, and plaintiffs must file any response by June 28.
The case is In re National Prescription Opiate Litigation, U.S. District Court, Northern District of Ohio, No. 1:17-md-02804.