Walmart Wins Motion To Dismiss In Opioids Case

https://www.forbes.com/sites/michaelkrauss/2021/06/10/walmart-wins-motion-to-dismiss-in-opioids-case/

Attached is a link to an interesting unanimous panel decision from the Sixth Circuit Court of Appeals in an opioids case. This is the very same court that would hear appeals from cases from decisions by Judge Dan Polster, Judge of the United States District Court for the Northern District of Ohio. Judge Polster, it will be recalled, has been selected by a federal judicial panel to preside over more than 200 consolidated prescription opioid-related lawsuits in multi-district litigation (MDL).

In the instant case, the plaintiff (a pharmacist working at Walmart WMT +0.6%) sued that company and others under the federal False Claims Act (FCA). The claim is that this pharmacist received large numbers of heavy opiate prescriptions written by the same doctor. Walmart allegedly filled these prescriptions, whose small copay indicated to the plaintiff that Walmart was obtaining Medicare and/or Medicaid reimbursement. The plaintiff believed these prescriptions to be fraudulent (both because of their number and because of the high dosage) and thus that the federal reimbursement to Walmart was fraudulent. He notified his employer of his decision to file his complaint, and claims he was fired as a result (adding a retaliation count to his suit).

Typically in such cases, the federal government intervenes to support the claim of alleged fraud and the claimant (here, the pharmacist) receives a reward for his initiative. Here, though, the government expressly declined to intervene, so the pharmacist persevered alone. But Walmart and the other defendants demurred (that is, claimed that the plaintiff’s suit did not state a cause of action) and won at trial. A unanimous Circuit Court panel here confirmed.

The reasoning is interesting and potentially applicable to Judge Polster’s MDL. The panel held that the tiny amount ($1 or $2) paid by patients for each prescription was no proof that the federal government had expended any money at all, or even that any demand for federal payment had ever been made. It also held that the mere fact that doses were high was no evidence at all that they were medically “too” high. It held that the mere fact the plaintiff was discharged in no way established any causation with his FCA claim. Finally, it held that the federal government’s decision not to intervene in the case demonstrated that it too found the allegations lacking. Essentially, the panel wondered how Walmart could believe the prescriptions to be fraudulent when the government itself clearly doesn’t think so.

It’s pretty clear that bare-bones lawsuits against a seemingly fat target (Walmart in an opioids suit) are not going to be met with favor in the Sixth Circuit. Plaintiffs had better be equipped, both in individual case and in the MDL, with detailed medical expert evidence about patients’ needs and about federal fraud.

Filed under: General Problems