·  Legal News, Analysis, & Commentary

Opioid Drugs

Walmart Rebuffs DOJ’s ‘Collective Knowledge’ Argument

— March 3, 2021

Walmart submits new brief in DOJ case.

Walmart’s Jones Day attorneys are now alleging that the Department of Justice (DOJ), in its complaint filed in federal court in Wilmington, Delaware late last year, “failed to allege a single instance of a Walmart pharmacist knowingly filling an invalid prescription for opioids.  Instead, it pointed to aggregate information held by different people in different parts of the company.  That information may have cast doubt on prescriptions written by some doctors or medical practices, but individual pharmacists can’t be responsible based on the company’s aggregate knowledge.”  In other words, no specific instances of suspicious orders were cited in its filing, and its collective knowledge argument can’t stand.

This brief was submitted in response to the DOJ’s suit accusing Walmart’s pharmacies of dispensing thousands of fraudulent opioids prescriptions, and the conclusion, according to Jones Day, is that the lawsuit should be thrown out.  “The government,” according to Walmart’s brief, “is warping the Controlled Substances Act by attempting to impute Walmart’s collective knowledge about suspicious opioids prescriptions to the individual pharmacists who filled them.  The Controlled Substances Act requires evidence that prescribers knowingly filled invalid prescriptions.  Imposing liability by piecing together the knowledge of various agents and the acts of others misses the fundamental point.”

Walmart Rebuffs DOJ's 'Collective Knowledge' Argument
Photo by Nathaniel Yeo on Unsplash

Walmart initially responded to the government’s lawsuit against it, filed in December, accusing the DOJ of “inventing a legal theory that unlawfully forces pharmacists to come between patients and their doctors.”

However, the DOJ fired back in response, “It has been a priority of this administration to hold accountable those responsible for the prescription opioid crisis.  As one of the largest pharmacy chains and wholesale drug distributors in the country, Walmart had the responsibility and the means to help prevent the diversion of prescription opioids,” according to Jeffrey Bossert Clark, Acting Assistant Attorney General of the Civil Division. “Instead, for years, it did the opposite – filling thousands of invalid prescriptions at its pharmacies and failing to report suspicious orders of opioids and other drugs placed by those pharmacies.  This unlawful conduct contributed to the epidemic of opioid abuse throughout the United States.  Today’s filing represents an important step in the effort to hold Walmart accountable for such conduct.”

Walmart’s declaratory judgment action asked U.S. District Judge Sean Jordan, nominated by former U.S. president Donald Trump, to enter nine judicial declarations on the scope of the Controlled Substances Act.  Judge Jordan tossed Walmart’s suit on February 4, concluding that “the government did not waive its sovereign immunity.”  Walmart plans to appeal this decision.

Walmart’s new brief argued that “several federal circuits, including the 5th, 11th and D.C. Circuits, have disavowed the idea that an individual employee’s scienter, or corrupt intent, can be established by citing information known to the corporation, but not to the individual.”  Walmart had previously argued that the DOJ was “forcing retailers to second guess doctors and putting pharmacists and pharmacies between a rock and a hard place with state health regulators who say they are already going too far in refusing to fill opioid prescriptions.”  The government has maintained there were “obvious red flags for years.”


Walmart attacks DOJ’s ‘collective knowledge’ theory in opioids prescription case

The Government Files an Opioid-related Case Against Walmart

Join the conversation!