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Opioid plaintiffs get green light to depose Walmart CEO

4 minute read

Doug McMillon, President and CEO, Wal-Mart Stores Inc. International. REUTERS/Sarah Conard.

  • Plaintiffs seek to ask about refusals to fill, prescriber blacklist
  • Company previously sanctioned for failing to timely produce discovery

(Reuters) - Plaintiffs in multidistrict litigation over the nationwide opioid epidemic can depose Walmart Inc CEO Doug McMillon over the company's objection, a federal court special master has ruled.

In a ruling issued Wednesday, Special Master David Cohen in the Northern District of Ohio, who is overseeing discovery matters in the sprawling litigation, said there was reason to believe McMillon had personal knowledge relevant to the case. Walmart can still ask U.S. District Judge Dan Polster, who is presiding over the MDL, to override the ruling.

Walmart and its attorney Tara Fumerton, and plaintiffs' lawyer Jayne Conroy of Simmons Hanly Conroy, did not immediately respond to a request for comment.

The MDL consolidates more than 3,300 cases by local and tribal governments against opioid manufacturers and distributors, as well as pharmacy operators like Walmart. A trial on claims against pharmacies is scheduled to take place in October.

The plaintiffs' request to depose McMillon arose from a sanction order against Walmart for failing to timely produce discovery. That discovery included a PowerPoint slide the company presented to the U.S. Department of Justice while it was being investigated, and nationwide records of its pharmacists' so-called "Blanket Refusals to Fill" prescriptions from certain prescribers, as well as a companywide Blocked Prescribers List.

As part of the sanctions, plaintiffs were allowed to depose two additional Walmart witnesses for one and a half hours each. The plaintiffs chose Director of Pharmacy Practice Compliance Deborah Mack, and McMillon.

Walmart objected, calling the request "harassing on its face" and quoting a 2002 ruling by U.S. District Judge Sarah Evans Barker in the Southern District of Indiana in an MDL over Bridgestone tires observing that "high level executives are vulnerable to numerous, repetitive, harassing, and abusive depositions."

Cohen, however, noted that Barker in that case went on to allow the deposition of Ford Motor executive William Ford on the grounds that the plaintiffs had presented evidence that Ford possessed relevant information and that conduct of high-level executives was relevant to the case.

"All of these factors weigh in favor of allowing McMillon’s deposition here, as well," Cohen wrote. "Plaintiffs offer evidence and colorable argument that McMillon has personal knowledge about and involvement in Walmart's adoption and use of Blanket Refusals to Fill and Blocked Prescribers Lists."

Specifically, he said, plaintiffs pointed to a 2016 meeting between McMillon and a friend who lost a son to opioids, in which McMillon promised that the company would take action against opioid abuse, and ensuing communications between McMillon and others at the company about the issue.

Cohen ruled that Walmart must file any objection by June 23, and plaintiffs must file any response by June 28.

The case is In re National Prescription Opiate Litigation, U.S. District Court, Northern District of Ohio, No. 1:17-md-02804.

For plaintiffs: Joseph Rice of Motley Rice, Paul Farrell of Farrell & Fuller, Jayne Conroy of Simmons Hanly Conroy and others

For Walmart: Tina Tabacchi and Tara Fumerton of Jones Day

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.

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