United States District Court, N.D. Ohio, Eastern Division
IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO: Track One Cases
AARON POLSTER, UNITED STATES DISTRICT JUDGE.
the Court is Walgreen's Motion for Summary Judgment (Doc.
#: 1876). For the reasons set forth below, the Motion is
Walgreens, Plaintiffs assert claims based on Walgreens'
alleged failure to maintain effective controls against
diversion. Walgreens seeks summary judgment on all claims,
asserting Plaintiffs do not have sufficient evidence to show
that any prescription opioids Walgreens shipped to its stores
were actually diverted from appropriate medical use.
Consequently, Walgreens argues, Plaintiffs are unable to
Court hereby incorporates the legal standards set forth in
the Court's Opinion and Order regarding Plaintiffs'
Summary Judgment Motions Addressing the Controlled Substances
Act. See Doc. #: 2483.
asserts that, as a matter of law, Plaintiffs cannot show
Walgreens caused Plaintiffs any harm because Plaintiffs have
no evidence that “prescription opioid medications,
shipped by Walgreens without adequate due diligence as part
of a ‘suspicious order,' were actually diverted
outside of legitimate medical channels.” Motion at 2-3
(Doc. #: 1876); see also Reply at 3-4 (Doc. #:
observe that Walgreens had a duty under federal law to
monitor and investigate suspicious orders and, where
appropriate, to refrain from shipping them. Opp. at 2-3 (Doc.
# 2205). Plaintiffs point to evidence of Walgreens'
significant failures to investigate and halt suspicious
orders. For example, in 2012, the DEA found, with respect to
a Walgreens Distribution Center in Jupiter, Florida:
“Walgreens has failed to maintain an adequate
suspicious order reporting system and as a result, has
ignored readily identifiable orders and ordering patterns
that, based on the information available throughout the
Walgreens Corporation, should have been obvious signs of
diversion occurring at [Walgreens'] customer
pharmacies.” Opp. at 8 (Doc. #: 2205); Jupiter Order to
Show Cause, Exh. 9 at Bates WAGMDL00387657 (Doc. #: 2205-9).
Moreover, according to Walgreens' own transactional data,
the Jupiter facility distributed prescription opioids to
Summit and Cuyahoga Counties from 2002 through 2007.
See Rafalski Report at 114 (Doc. #: 2000-22 at 14)
(citing WAGMDL00293631; WAGMDL00490979; WAGMDL00773926;
ABDCMDL00170319; and MNK-T10005986422 at MNK-T1 0005986423).
also present evidence indicating that the Walgreens' lax
approach to monitoring diversion at the Jupiter facility was
standard operating procedure nationwide, including at the
Perrysburg, Ohio Distribution Center, which supplied
prescription opioids to the Track One Counties from “at
least May 2003 through March 2013.” Id.
Plaintiffs also cite to deposition testimony of Deborah Bish
indicating that Walgreens' apparently deficient
Suspicious Control Drug Report process, in use at the Jupiter
distribution center, was the model for anti-diversion
processes used throughout the country. Opp. at 8 (Doc. #:
2205); Bish Dep. at 34-37 (Doc. #: 1959-2).
basis of this evidence, and as noted in the Court's
previous Order Regarding Defendants' Motions for Summary
Judgment on Causation (Doc. #: 2561), Plaintiffs have
produced evidence upon which a jury could reasonably
conclude: (1) Walgreens failed to maintain effective controls
against diversion; and (2) these failures were a substantial
factor in producing the alleged harm suffered by Plaintiffs.
See Order at 8-9 (Doc. #: 2561); see also
Rafalski Report at ECF pp. 114-135 (Doc. #: 1999-21)
(detailing deficiencies in Walgreens' suspicious order
monitoring and due diligence procedures); Opp. at 3-11 (Doc.
#: 2205) (same); Pang v. Minch, 559 N.E.2d 1313,
1324 (Ohio 1990); BCS Servs., Inc. v. Heartwood 88,
LLC, 637 F.3d 750, 758 (7th Cir. 2011).
Accordingly, Walgreens is not entitled to summary judgment on
reasons stated above, the Motion is DENIED.