Walmart Sues DOJ Over Texas Opioid Investigation

Former U.S. Attorney Karen Hewitt has turned the tables by suing the U.S. Department of Justice on behalf of Walmart over federal opioid law.

Hewitt, who is now Jones Day’s partner-in-charge of the California region, is the lead counsel in litigation in Texas federal court in which Walmart alleged that the Department of Justice and the U.S. Drug Enforcement Administration are threatening to hold pharmacists and pharmacies liable for violating “unwritten expectations” about how to handle opioid prescriptions.

“When a patient presents a pharmacist with an opioid prescription written by a doctor who is licensed by a state medical board and credentialed by DEA to prescribe controlled substances, the pharmacist must make a difficult decision.

The pharmacist can accept the doctor’s medical judgment and fill the opioid prescription, or second-guess the doctor’s judgment and refuse to fill it—a decision the pharmacist must make without the benefit of a medical license, examining the patient, or having access to medical records,” said the complaint in Walmart Inc. v. U.S. Department of Justice, filed Thursday in the U.S. District Court for the Eastern District of Texas in Sherman.

Hewitt worked at the Justice Department for 18 years and in 2007, then-president George W. Bush appointed her to become the U.S. attorney for the Southern District of California. She increased the office’s criminal prosecutions and immigration cases in 2008 compared to her predecessor, said an article in the Voice of San Diego. But the numbers of white-collar cases and public corruption cases dropped during her tenure.

She resigned from the Justice Department in 2010—then-President Barack Obama had appointed someone new—and joined Jones Day. She became the California regional partner-in-charge for the firm in January, according to an article in The Recorder. She supervises nearly 300 attorneys in the firm’s offices in Los Angeles, Irvine, Silicon Valley, San Francisco and San Diego.

Hewitt, who didn’t immediately return a call seeking comment, represents companies in civil and criminal investigations and business litigation, her law firm biography said. She defends possible violations of federal laws like the Anti-Kickback Statute, Foreign Corrupt Practices Act and False Claims Act. She earned her law degree from the University of San Diego School of Law in 1989.

Other attorneys representing Walmart from Jones Day are Jason Varnado and Andrew Junker of Houston, and Michael Carvin, Benjamin Mizer (formerly also of the justice dept), Yaakov Roth and William Laxton Jr. of Washington, D.C. Two attorneys from Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., and two from Siebman Forrest Burg & Smith in Sherman, Texas, round out the plaintiffs lawyer team.

Walmart said in a statement about the litigation that Justice Department officials are chasing headlines rather than fixing the opioid crisis. The department is threatening litigation against Walmart, the statement said.

“We are bringing this lawsuit because there is no federal law requiring pharmacists to interfere in the doctor-patient relationship to the degree DOJ is demanding, and in fact expert federal and state health agencies routinely say it is not allowed and potentially harmful to patients with legitimate medical needs,” the statement said.