CLEVELAND (Legal Newsline) - Walmart criticized a “ginned up” request for mistrial or sanctions by plaintiff lawyers, who said the retail chain had compromised their case by producing more than 1,000 documents after start of a closely watched opioid trial in federal court in Cleveland.
In their filing with U.S. District Judge Dan Polster on Monday, lawyers representing two Ohio counties said Walmart had caused so much damage by withholding evidence that the judge should either grant them a default verdict or declare a mistrial. As a fallback, the lawyers proposed allowing them to call former Walmart executive Brad Nelson to testify live in person or via video.
Judge Polster granted that request Tuesday, ordering Nelson to appear via video from his home in Arkansas. In a brief order, the judge said the plaintiffs have “pointed to highly relevant documents produced in discovery after Mr. Nelson was deposed,” in March.
In a response to the plaintiffs’ sanctions motion, Walmart said the real reason for the motion was plaintiff lawyers were “apparently dissatisfied” with their prior deposition of Nelson, a key witness on the question of Walmart’s national opioid dispensing policies. The company said most of the documents the lawyers cited as arriving late mirrored other information Walmart provided months ago.
The only reason it is still producing documents, Walmart said, is Judge Polster expanded the scope of discovery to nationwide in April, over the objections of defendants who said evidence should be restricted to the two counties accusing pharmacy chains of causing a public nuisance there.
The plaintiffs “have ginned up a request for sanctions based primarily on a few documents produced months and weeks ago that have nothing to do with Lake or Trumbull Counties and are substantively identical to documents they had in their possession well before they questioned Mr. Nelson the first time,” Walmart said in its response.
The request for a default judgment or mistrial could reflect frustration by the plaintiff lawyers over Walmart’s lead role in fighting the public nuisance case in court instead of settling, as other defendants including Purdue Pharma, Johnson & Johnson and the three main pharmaceutical distribution companies have done. Even Judge Polster expressed frustration with Walmart in a March hearing, threatening other defendants with bankruptcy if they followed the chain into trial.
“I can't imagine that the defendants' strategy is to try hundreds of these. I mean, if that happens, the only one left will be Walmart,” Judge Polster said then. “There will be a monopolist. I can see why they want it, but I don't see why the others would.”
In their motion for sanctions, plaintiff lawyers said Walmart was late in producing files from Nelson, who served as a senior manager in charge of controlled substances and later a director of compliance. They say some of those emails detailed Nelson’s knowledge of “pill mills” and improper prescribers around the country and suggest Walmart knew of “red flags” indicating suspicious prescriptions were flowing through its pharmacies.
One email produced on Oct. 5, the day after the bellwether trial started, was a “refusal-to-fill” form detailing how a prescription from a doctor whose patients frequented a store in Pooler, Georgia turned up at a Walmart pharmacy in Illinois.
“I think we have been attracting the wrong kind of Business at Pooler for a while,” Nelson wrote on the form, which was forwarded to corporate executives.
Walmart, in response, said that same form was produced to the plaintiffs in January of this year, as were other pieces of evidence that were described as arriving late.
“Nearly all of the remaining documents discussed in Plaintiffs’ motion are substantively similar to extraterritorial documents Plaintiffs not only possessed, but questioned Nelson about at his deposition,” Walmart said.
Judge Polster ordered the bellwether trial of public nuisance claims against Walmart, CVS, Walgreens and Giant Eagle, a regional grocery chain, after settlement negotiations failed. He rejected complaints by the defendants that he was singling out large companies when there was ample evidence locally owned pharmacies filled far more questionable opioid prescriptions and provided well more than half of the pills sold in the two counties.
The defendants also have complained about the judge’s rulings on questions of evidence and procedure, some of which have been reversed by the Sixth Circuit Court of Appeals. Last year, for example, the appeals court halted his order to release millions of prescription records nationwide for the two-county trial in Ohio, which both the American Civil Liberties Union and the U.S. Chamber of Commerce protested would be a gross invasion of privacy. Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.
In its filing this week, Walmart cautioned the judge against calling Nelson in for testimony, citing federal rules of procedure and court precedent limiting jurisdiction over out-of-town witnesses. The judge expanded the geographic scope of discovery in April, after Nelson’s March 23 video deposition, Walmart said, leaving the company scrambling to sort through millions of additional documents before trial.
Sanctions are only merited when a party acts in bad faith, Walmart said. The company has struggled to comply with the judge’s changing discovery orders and can’t be accused of deliberately delaying production, Walmart said.
The next battle in this trial is likely to be over jury instructions, which are critical to both sides. In order to prove the pharmacy chains caused a public nuisance, the plaintiffs must convince the jury the chains failed to implement policies preventing illegal prescriptions from being filled and those illegal prescriptions caused “a significant interference with a public right to health or safety.”
In proposed jury instructions CVS submitted to the court this week, the company says jurors should be told that the “unlawful conduct” that is required to create a public nuisance should be restricted to knowingly filling a prescription that was either not issued by a licensed prescriber or which was issued for an illegitimate purpose outside “the usual course of the prescriber’s practice.”
The plaintiffs agreed before the start of trial that they won’t present any evidence of illegal prescriptions the chains filled in Trumbull and Lake counties. Instead, they are relying on the testimony of expert witnesses who use statistical models they created to suggest the chains filled prescriptions bearing “red flags” suggesting they may have been illegitimate.