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Fort Lauderdale, FL— A Florida jury Monday previewed evidence concerning opioid retail sales and their alleged role in the epidemic of the drug’s abuse, as trial opened against three of the country’s largest retail pharmacy chains. Florida Health Sciences Center, North Broward Hospital District, et al. v. CVS, Wal-Mart, and Walgreens, CACE19018882.
More than two dozen hospitals across Florida claim CVS, Walmart, and Walgreens violated the state’s racketeering, or RICO, statute, by working to improperly distribute and dispense the drugs, flooding the market. The hospitals contend those retailers helped cause the statewide spike in opioid abuse, leading to hundreds of millions of dollars in costs incurred treating uninsured patients who suffered opioid-related injuries.
In his opening statement, the hospitals’ attorney, Burns Charest’s Warren Burns, walked jurors through evidence he said showed the retailers collaborated in groups that helped limit regulation of opioids, and were part of an industry that fundamentally changed the approach of pain management, leading to the massive swell of addictive opioid use.
Burns told jurors that, from 2006 to 2018, the retailers dispensed more than 2.1 billion opioid pills into the counties the hospitals served, enough pills to give 192 pills to every person living in those areas.
And he added that the retailers’ policies, which incentivized fulfillment speed, prevented pharmacists from properly resolving “red flag” concerns about whether opioid prescriptions were actually valid.
Burns told jurors an expert would conclude that anywhere from roughly one-third to one-half of opioid prescriptions at issue that the retailers received contained “red flags” that were never resolved.
“The effect of these corporate defendants’ policies was to blind their pharmacists,” Burns said, “[and] to prevent them from fully exercising their professional duty.”
But while the retailers acknowledged the severity of the opioid abuse epidemic, they pushed back on claims they violated the law in dispensing the drugs.
On Monday, Walmart’s attorney, David Markus, of Markus Moss, told jurors that claims under the state’s RICO statute failed because there would be no evidence that Walmart or other retailers illegally worked in concert to push the drugs into the marketplace.
“RICO was built to stop crime families,” Markus said. “RICO was built to stop racketeers, not Walmart, and not pharmacists who are doing their best.”
Bartlit Beck’s Brian Swanson, representing Walgreens, agreed, telling jurors that, in order to prove its claim for damages, the evidence needed to rise to the level of criminal conduct on the part of the pharmacists in order for the hospitals to prevail.
“Plaintiffs need to show, to prove their case, that our pharmacists acted as criminal drug dealers,” Swanson said. “The evidence will not come close… to establishing that.”
And in his opening, Zuckerman Spaeder’s Eric Delinsky, representing CVS, spotlighted the retailer’s policies admonishing its pharmacists’ obligation to check suspicious prescriptions and refuse to fill them if they believed they were not legitimate.
“That’s what CVS instructed its pharmacists,” Delinsky said. “And, ladies and gentlemen, that is not drug-dealing behavior. That is not RICO-violating behavior.”
Trial is expected to last up to three months.
Email Arlin Crisco at acrisco@cvn.com.
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