NM trial begins in opioid suit against three pharmacy chains: Walgreens, Walmart and Kroger pharmacies

• The suit alleges Walgreens, Walmart and Kroger pharmacies failed to investigate suspicious opioid orders and reaped large profits selling addictive drugs to New Mexicans.

New Mexico filed a wide-ranging opioid lawsuit in 2017 alleging that companies at all levels of the supply chain profited by selling large quantities of prescription painkillers throughout the state.

A district court judge in Santa Fe heard opening statements last week in what is expected to be a seven-week bench against three of the state’s largest pharmacy chains. The case will be decided by 1st Judicial District Judge Francis Mathew and not a jury.

The suit alleges Walgreens, Walmart and Kroger pharmacies failed to investigate suspicious opioid orders and reaped large profits selling addictive drugs to New Mexicans.

Attorneys for the pharmacy chains responded that pharmacists have a responsibility to fill prescriptions ordered by physicians who for years stressed treatment of pain as a top medical priority.

“The evidence will also show that Walgreens, Walmart and Kroger did not dispense opioid medications without prescriptions from prescribers,” Walgreens’ attorney, Dan Taylor, said during his opening statement.

New Mexico Attorney General Hector Balderas said in his opening statement that dozens of other companies named in the original lawsuit have settled with the state.

“The remaining defendants in this case, Walmart, Walgreens and Kroger, are responsible for one out of every two pills sold in New Mexico, yet they steadfastly claim that they’ve done nothing wrong,” Balderas said.

Balderas said that a single Walgreens pharmacy in Española dispensed 12.4 million opioid pills from 2006 to 2019.

“That’s enough to give every man, woman and child in Española 841 pills for that time frame,” he said.

Walgreens spokesman Fraser Engerman said the Deerfield, Illinois-based pharmacy chain does not manufacture or market opioids, “nor did we distribute them to the ‘pill mills’ and internet pharmacies” that are largely responsible for the problem.

“The only place Walgreens ever dispensed opioid medications was at the pharmacy window when presented with a valid prescription written by a licensed physician for a legitimate medical need,” Engerman said in a written statement.

John Majoris, an attorney for Walmart, said in his opening statement that New Mexico’s policy on opioid prescribing shifted over the years from one that encouraged aggressive treatment for pain to a later position that imposed restrictions on opioid prescribing. Walmart is based in Bentonville, Arkansas. Kroger, the parent company of Smith’s Food and Drug Centers, is based in Cincinnati, Ohio.

Majoris presented the common arguments for all three defendants.

“When the state encouraged prescribers to treat pain aggressively, they wrote more prescriptions, which increased the supply in the state,” Majoris said. In later years, the state “encouraged prescribers to be more judicious in their opioid prescribing.”

Prescribers drove the supply of opioids throughout this period, Majoris said. Pharmacists filled prescriptions as directed by prescribers, he said.

“There’s no doubt that New Mexico prescribers – not retail pharmacists – are responsible for the volume of prescriptions in the state at any given time,” Majoris said. “Pharmacists don’t set social or medical policy.”

New Mexico became the eighth state to sue opioid manufacturers and distributors in September 2017, alleging “the sheer volume of prescription opioids distributed to (New Mexico) pharmacies is excessive for the medical need of the community.”

In February 2019, the state expanded the lawsuit to include several retail pharmacies. New Mexico subsequently reached settlements with a number of opioid manufacturers and distributors in a deal that Balderas’ office estimates will bring $190 million to the state.

Four large manufacturers, including Purdue Pharma, maker of OxyContin, filed for bankruptcy as a result of the litigation “and New Mexico continues to pursue them in that forum,” Balderas’ office said in a statement.

In March 2023, the state expects to begin a trial in Santa Fe against pharmaceutical manufacturers Teva, Allergan and KVK-Tech.