Special master sanctions Walmart in multidistrict opioid litigation case.
Walmart is part of the multidistrict litigation (MDL) in Ohio, facing opioid-related lawsuits brought by state, local, and tribal governments. The consolidated cases against the retailer, specifically, which are being overseen by U.S. District Judge Dan Polster of Cleveland, are alleging improper distribution of prescription opioids in Walmart’s pharmacies. The MDL includes more than 2,000 opioid-related claims.
This month, the special master overseeing MDL discovery, David Cohen, ordered new depositions of Walmart witnesses, while sanctioning the company for not complying with a longstanding discovery order requiring it to produce documents from other opioid cases outside of the consolidated case. The sanctions were related to motions to compel production of Massachusetts and Delaware documents.
Walgreens, CVS, Walmart, and other pharmacies had asked Polster to vacate the 2019 motion to turn over to a central repository all materials produced in cases outside of the MDL. The defendants argued that an April 2020 mandamus ruling from the 6th U.S. Circuit Court of Appeals proved this was an overly broad request for discovery. Judge Polster, however, refused to modify or withdrawal the request in a June 2020 decision.
The Massachusetts documents covered under the order include a PowerPoint presentation from Walmart to the U.S. Department of Justice (DOJ) during its investigation of the retailer’s dispensing practices and Walmart’s nationwide list of doctors whose opioid prescriptions it would not fill.
Walmart insisted the Delaware documents were not covered by the orders because the Chancery Court litigation was over access to Walmart’s records. However, Delaware Chancery Judge Travis Laster previously 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.”
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.”
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.”
Walmart responded, defending its position. It submitted a written statement indicating, “We respect the rules of the court, and we take our discovery obligations seriously. We believe we complied with all of the court’s discovery orders, and we will continue to defend the company in this litigation.”
However, the mere fact the retailer has been dodging the order doesn’t look good, and now, being sanctioned by the court only strengthens the case against Walmart.