The American Society for Pharmacy Law (ASPL) is an organization of attorneys, pharmacists, pharmacist-attorneys and students of pharmacy or law who are interested in the law as it applies to
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Latest News

October 22, 2021

EMPLOYMENT LAW
Federal jury awards pharmacist $27 million in punitive damages against Wal-Mart for claims of retaliation and wrongful termination
On October 20, a federal district judge for the Central District of California entered a judgment based on a jury award totaling $27,500,100, not including potential costs, to a California pharmacist, Afrouz Nikmanesh against Walmart, Inc. The jury awarded $40,100 for past economic losses, $100,000 for past non-economic losses, $60,000 for future non-economic losses, and $27.3 million in punitive damages. [Nikmanesh v. Wal-Mart Stores, Inc. et al., No. 8:15-cv-00202-JGB (JCGx), C.D. Cal., October 20, 2021; https://bit.ly/3vzLTFV]

The litigation history of this case dates to 2015, where it began as a putative class action [2015 U.S. Dist. LEXIS 52461]. Certification of the class was denied in 2016 [2016 U.S. Dist. LEXIS 2002225; 2016 WL 11679646], and summary judgment was awarded to Walmart in 2017 on Nikmanesh’s claims of wrongful termination and retaliation [2017 U.S. Dist. LEXIS 229422; 2017 WL 11526367].

An unpublished opinion by the 9th Circuit in December 2019 reversed the summary judgment on the wrongful termination and retaliation claims, but apparently did not consider the denial of class certification [Nikmanesh v. Walmart Inc. et al., No. 18-55557, 9th Cir., December 23. 2019; https://bit.ly/3b22Q2C].

In August 2021,  in civil minutes addressing motions in limine ahead of trial, the Court noted that “After partial settlements, stipulations, and dismissals, the only remaining claims are Plaintiff Nikmanesh’s individual claims for wrongful termination (Claim 10) and retaliation (Claim 11).”

Without summarizing voluminous pleadings over the years, the heart of Nikmanesh’s retaliation claims is that she was fired for reporting wrongdoing, and the wrongdoing was financially beneficial to Walmart. Among the claimed violations reported were alleged overcharging of Medicare customers for drugs eligible for a “Medicare discount;” failure to report necessary data to California’s CURES program (Controlled Substance Utilization Review and Evaluation System); failed to compensate pharmacists for time spent on required home study and testing needed to be able to administer vaccines; and accepting improperly faxed prescriptions for controlled substances.

Walmart moved in limine to exclude evidence pertaining to the type, nature and veracity of the violations alleged by the plaintiff. It stipulated that she was engaged in a protected activity, and that Walmart would not dispute she had a reasonable belief as to the potential unlawfulness of the alleged conduct. Thus the actual nature of the allegations is irrelevant to her case, but may create a “negative emotional response from jurors.” Nikmanesh argued that Walmart did not address the valuations but never corrected them and instead terminated her. She is entitled to prove her case by her own evidence, not by stipulation, and it is necessary to establish the nexus between her reporting and Walmart’s employment action. The Court agreed and denied the motion in limine.

Related to this issue, the Court precluded testimony about Walmart’s financial condition unless and until the jury determines that the defendant is liable for punitive damages, with the exception that the plaintiff may present specific evidence concerning the financial impact of the defendant’s alleged overcharging of Medicare patients.

Ahead of trial, the Court granted Walmart’s unopposed motion to bifurcate the trial into two phases: (1) issues related to liability, compensatory damages, and entitlement to punitive damages; and (2) issues related to the amount of punitive damages. [2021 U.S. Dist. LEXIS 200456, August 16, 2021]