Americans concerned about the politicization of our legal system won’t be comforted by the Department of Justice’s lawsuit against Walmart’s alleged role in the opioid crisis, which looked political from the jump. A federal judge telegraphed earlier this week that the suit is also far-fetched. U.S. District Judge Colm Connolly two of the government’s four claims in a Monday order, and left the
Justice Department a steep path to climb as to the two remaining allegations. The two claims Connolly dismissed concerned theories about Walmart pharmacies failing to report suspicious transactions and internally document “red flags,” or indicia of illegitimate prescribing activity. The Justice Department must now show that chain pharmacists were obliged to do better spotting, investigating and halting what might have been illegitimate prescriptions from Drug Enforcement Agency-approved doctors — a task that federal law assigns to the government and which the government itself has repeatedly failed to do. If anything, the oversight scheme governing opioid prescribers seems designed to exclude pharmacists altogether. Connolly’s decision also seems to vindicate claims that the Justice Department has been using the lawsuit to distract from its own oversight failures. The Controlled Substances Act designates the Drug Enforcement Agency as the primary regulator for opioid prescribers. Any provider who writes opioid prescriptions needs to register with DEA. The agency is able to rescind doctors’ registrations where necessary and has an emergency tool — the immediate suspension order — to stop bad-faith prescribers with minimal process. A 2019 Justice Department concluded that DEA had been “slow to respond to the significant rise in the use and diversion of opioids” between 2010 and 2017. And state attorneys general have similar trends. DEA has many oversight responsibilities besides this one. The agency sets annual production quotas for opioid medicines that track “legitimate medical and scientific need.” And DEA’s diversion control division is responsible for policing diversion of opioids from their legitimate uses. For their part, pharmacists are largely constrained from interfering with medical care. Although pharmacists are not to “knowingly” fill an illegitimate prescription, their involvement is secondary to doctors’ primary responsibility not to write an illegitimate prescription. And here, the order recognizes that the prescriptions at issue were all dispensed according to bona fide prescriptions from duly registered DEA doctors. Pharmaceutical boards in many states restrict pharmacists’ ability to second-guess legitimate prescriptions. And physicians don’t much appreciate “interference” from pharmacists. Doctors have sued pharmacists for tortious interference and even defamation over refusal to fill decisions. This policy choice is the correct one. Pharmacists do not have medical expertise or visibility into the totality of circumstances which lead to any individual prescription. And it would make no sense to concentrate oversight and responsibility to scrutinize the entire transaction at the dispensing point of service, the very last link of the chain. This choice is also optimal from the patient perspective. Patients should not have to liaise between their pharmacist and their doctor over professional conduct issues. Patients just need their medications. Given all of these statutory and policy landmines, it is difficult to envision the government prevailing in this case. As for the distribution count, the allegation that the company failed to inform DEA of “suspicious orders,” the judge concluded that federal law imposed no such burden on the company. While the Controlled Substances Act was amended in 2018 to create such a requirement, it was not in effect during the time frame at issue in this lawsuit. The judge reached a similar conclusion with respect to documenting “red flags.” The purported authorities for this proposition within the Controlled Substances Act create no such obligation. They merely prohibit dispensing opioids without a prescription. As Judge Connolly put it, “This liability theory trips right out of the gate.” The same could be said of the government’s lawsuit more broadly. The government’s exotic theories of liability are outside the text of the law, inconsistent with the policy landscape and inconsistent with common sense. And all of this after a internal clash within the Justice Department as to whether the government should pursue criminal charges against the retailer. The U.S. is in the midst of a mental health catastrophe with more than 100,000 Americans dying yearly from overdoses. Instead of blaming private sector actors for this crisis, the government should take a long hard look at its own policies that have pushed things this far.