Walmart, CVS, Walgreens, Rite Aid, and other pharmacies must cough up 14 years of national opioid-dispensing data and hand it to plaintiffs seeking billions of dollars from the companies for their alleged role in the opioid abuse crisis.
A federal judge in Cleveland overseeing the opioid multidistrict litigation involving more than 2,000 lawsuits issued a ruling that disregards most of the pharmacy industry defendants’ arguments for why their data should be kept private.
The order mandating unprecedented levels of pharmacy data disclosure sets the stage for massive production both in a 2020 bellwether lawsuit in Cleveland involving these chains and for potentially thousands of similar cases across the U.S. where the industry is now forced to divulge how many opioids were dispensed since 2006.
The defendants argued that divulging this data could harm patient privacy and that plaintiffs should get the information from a tracker run by the state of Ohio that records incomplete dispensing information and has only started to gather widespread data in the past few years.
“Regarding the first matter, the Pharmacy Defendants are simply wrong that the Court did not consider patient privacy interests. The Court has put into place numerous protective orders specifically addressing health information protected under the Health Insurance Portability and Accountability Act ('HIPAA'), such as patient prescriptions,” Judge Dan Polster of the U.S. District Court for the Northern District of Ohio wrote in the Dec. 30 order.
Polster also rejected the defense argument that Summit and Cuyahoga counties should instead be forced to fight for more limited data from Ohio, which doesn’t want to hand over its prescription and dispensing information.
“The Pharmacy Defendants’ own data is the best and most complete source of relevant information, and access to it by both Plaintiffs and Defendants should be reasonably equal,” Polster said.
On Dec. 9 Special Master David Cohen sent the parties in the dispute an email saying pharmacy defendants must produce transaction data similar to information produced by the Justice Department’s automated drug reporting system called ARCOS. Because that federal data was national in scope and went back to 1996, the pharmacy defendants would have to meet those parameters as well, the special master’s email said.
That order was “grossly disproportionate” to the needs of the two counties bringing claims in the bellwether case—called Track 1B—in Cleveland, the pharmacies argued in a Dec. 20 brief.
“The Court clearly erred by ordering a vast and unprecedented production of private personal medical records without any consideration for the privacy interests at stake, the geographically narrow needs of the Track 1B cases, or whether the burden on Pharmacy Defendants is appropriate, particularly given that the relevant data could be more efficiently obtained by subpoena from the State of Ohio’s Automated Rx Reporting System ('OARRS'),” the pharmacy defendants said.
To give context to the massive scope of the discovery undertaking and immense burden, the defendants provided declarations from experts. One CVS information technology director said the company has data on “well over 10 billion prescription fills” and that sorting through the data and providing relevant records could take six to nine months.
But pharmacy arguments ignore the importance of this data to the thousands of cases brought against the opioid industry, attorneys for the plaintiffs argued in their own Dec. 24 brief. This data will be needed in other cases, and one reason for having multidistrict litigation is to minimize duplicative discovery and document production disputes.
“As the Court has noted numerous times, this is not only perhaps the most complex civil litigation ever undertaken in the U.S., it also concerns a crisis of unmatched proportions that is ongoing,” the plaintiffs said. “To cite but one statistic, drug overdoses recently killed more people in just one year (2017) than Americas were killed in the Vietnam and Iraq Wars combined.”
Narrowing Prior Order
Polster’s order modified prior requirements, reducing what pharmacy defendants would have had to produce and creating a “roll-out schedule” for sharing the data.
The Dec. 30 order cuts the prescription data production period down by 10 years, reasoning that the ARCOS data produced by the Department of Justice only went back to 2006, so defendant pharmacies should be held to that year as well.
The data will also be rolled out first on dispensing for Cuyahoga and Summit counties, then for the whole state of Ohio, then for West Virginia and Kentucky, and then for the whole country.
The committee of plaintiff attorneys representing local governments in the multidistrict litigation didn’t immediate respond to a request for comment.
Walmart, Walgreens, CVS, and the Ohio-based chain Discount Drug Mart didn’t immediately respond to requests for comment. Rite Aid and Giant Eagle declined to comment on the ongoing litigation.
The case is In re: Nat’l Prescription Opiate Litig., N.D. Ohio, No. 2804, discovery order 12/30/19.