Wednesday, February 01, 2006

Today's Stupid Frivolous Lawsuit.

Women Suing Walmart for Not Carrying Emergency Contraception

According to the AP (via Boston.com News) comes this story, sure to make the general public have much more feeling that lawyers don't file too many frivolous lawsuits (sarcasm, in case you missed it):


Three Massachusetts women backed by pro-abortion rights groups sued Wal-Mart on Wednesday, saying the retail giant violated a state regulation by failing to stock emergency contraception pills in its pharmacies.

The suit filed in Suffolk Superior Court seeks a court order compelling the company to stock the so-called "morning after pill," in its 44 Wal-Marts and four Sam Club stores in Massachusetts, all of which have pharmacies.

"Wal-Mart apparently thinks it is above the law," said Sam Perkins, a lawyer for the three plaintiffs.

A new state law that took effect late last year following heated debate on Beacon Hill requires all hospitals to provide the morning-after pill to rape victims. It also allows pharmacists to dispense the pill without a prescription, but does not require it.

The suit, backed by Planned Parenthood of Massachusetts, NARAL Pro-Choice Massachusetts and Jane Doe Inc., argues Wal-Mart is violating a state policy that requires pharmacies to provide all "commonly prescribed medicines." They are suing to force compliance with the regulation through the Massachusetts Consumer Protection Act.


Let's revisit two parts of that blurb:
Exhibit 1:

"Wal-Mart apparently thinks it is above the law," said Sam Perkins, a lawyer for the three plaintiffs.


Exhibit 2:

state policy . . . requires pharmacies to provide all "commonly prescribed medicines."


So Sam Perkins (who I thought was a washed out NBA player), is apparently arguing that the morning after pill is a "commonly prescribed medicine." I could be wrong, but I'll go out on a limb and predict that the courts strongly disagree with this. As the article goes on to point out, Walmart's policy is to refer patients to another specific pharmacy if a patient seeks something the pharmacy does not carry. It doesn't sound as if Walmart is holding these women hostage and preventing them from taking their business elsewhere or otherwise affirmatively trying to stop them from getting the pill. Walmart is just deciding not to carry a particular product which, it looks to me, they are not required to carry.

This is just stupid. I hope this gets thrown out quickly and with much publicity.

More:
Jurist
Jonathan B. Wilson **UPDATE: February 6, 2006**

18 Comments:

Blogger Pooh said...

To mind, it's a colorable claim, but not knowing more about Mass. law, I can't say more.

FWIW, we had something of a knockdown-drag out on this very issue at Balloon Juice a few days ago.

Suffice it to say that this issue is slightly more complext than at first glance precisely because of the heavily regulated nature of a pharmacy business. To what extent does the agreement made with the state, in exchange for a license, cabin the store's 'business judgment' in choosing which medicines to carry.

6:42 PM  
Blogger XWL said...

Deride frivolous lawsuits and lazy journalism all you want but don't call The Big Smooth washed-out.

He had a long and impressive NBA career (In the top 15 all-time for games played) and was a solid contributor at the end of the 'Showtime' era for the Lakers in the early 90s.

Even at the end of his career he was a big part of Indiana making the finals in the 99-00 season.

I'll stay away from the legal issues surrounding the case, but I can't stand silent when a sleepy-eyed class act like Sam Perkins is disparaged.

(tongue mostly in cheek, by the way, but I am serious about Perkins having a pretty great NBA career considering he was never the 'go to' guy on any team, and after 17 seasons you don't 'wash-out' from the NBA so much as 'move-on')

1:02 PM  
Blogger reader_iam said...

This comment has been removed by a blog administrator.

1:41 AM  
Blogger reader_iam said...

Now, as a viable lawsuit, I couldn't and wouldn't claim the ability to comment on its merits.

But I get to comment on its meritoriousness generically , and so I have.

1:43 AM  
Blogger reader_iam said...

This may seem off the wall, but to a degree, I have to wonder--aside from the fact that Walmart is Walmart, after all, and therefore an auto-target for everything--if one of the reasons it's important to force that particular company to carry the product is because of its store hours. In many places, they are open at all times.

So if you've "goofed," why shouldn't you be able to go right away and buy the antidote? It's a right, correct, for someone else to be forced to accommodate your timing?

Well, you could buy it ahead of time, from a business happy to sell it. Or you could use birth control. (Or ... nevermind.)

Then again, all of that anticipatin' and plannin' involves .... forethought, a completely unfair expectation. As opposed to the one that, you know, every business should be run to accommodate your concept of what its model should be. Or else you'll sue. Because that takes effort that's ... less time-consuming (ha!) than the aforementioned forethought.

(Then there's the other cynical possibility: Maybe it's that Walmart is cheaper, generally, and of course whatever you want to buy MUST be offered there, because you're entitled to the discount--well, just because.)

Sheesh. What a load!

(I re-did this to correct mistakes and expand just a touch. So the previous comment of mine should be read AFTER this.)

1:52 AM  
Blogger Kierkegaard Lives said...

Hey guys! Thanks for the comments.

Pooh:
I don't doubt the issue is a bit more complex than at first glance. Nonetheless, it appears that these people chose to go after Walmart (whom I am not a big defender of) simply as a set-up and to make a statement about their belief in their entitlement to the morning after pill. This wasn't a case, as far as I can tell, of somebody who actually suffered any harm. There's a post on this over at Jonathan B. Wilson. The meaning of "commonly prescribed" cannot simply be determined on the basis of political agendas. Although the industry is heavily regulated, and although Walmart certainly gives up some rights to decide what to carry in exchange for its license, this situation still smacks of frivolousness to me.

xwl:
Please accept my apologies. I should not have suggested that Perkins had washed out. You are definitely "not wrong" to suggest that players don't wash out after careers like Perkins'. I can still picture the man, in almost slow-motion, pulling up for one of those long three pointers that he didn't look like he should ever be able to make.

riam:
It's probably enough to say that I appreciate your sarcasm. Thanks for giving your thoughts!

7:01 AM  
Blogger Pooh said...

Your "commonly prescribed" argument cuts both ways, though I would suggest that claiming birth control in general is not "commonly perscribed" strains credulity.

If you want "frivolous" check out this one. That's a suit that's just ridiculous on its face.

The case we're discussing here is interesting as both a policy and a legal matter, so on that basis alone, I think calling it 'frivolous' is incorrect - you can feel strongly that the plaintiffs will (and should) lose, but that in and of itself is not frivolity.

And don't mess with Sleepy Sam...

1:32 PM  
Blogger Kierkegaard Lives said...

Good thoughts, as always Pooh.

I hope I didn't say anything to suggest that I thought birth control in general is not commonly prescribed. Nonetheless, the morning after pill is still, under any rational thinking I can come up with, most assuredly not commonly prescribed. I'm willing to be convinced otherwise, but the last statistics that I saw (which I admittedly do not have handy) suggested that the morning after pill is still very rarely prescribed. Maybe I'm misunderstanding you, but I don't see how suggesting that the morning after pill, a relatively rarely prescribed medication, is not "commonly prescribed" (the words of the statute), strains credulity.

As for my choice of the word "frivolous," I chose the word because I see this as a lawsuit that is groundless and that has very little likelihood of success, and that was brought primarily to annoy or harrass the defendant (Wal-Mart) -- that's pretty much the legal definition of frivolous. I think the AP article I linked to above from the Wilson post demonstrates that the suit was not filed because of any actual legal harm suffered by the plaintiffs, but, rather, because they wanted to make a political statement (thus, to annoy or harrass the defendant). We can differ about whether the suit is really groundless, but inasmuch as my opinion right now is that it is groundless, frivolous is precisely the word. You disagree that the suit is groundless, so you don't see it as frivolous, but that's the crux of our disagreement on this one.

Hopefully I'm being successful at disagreeing with you here without pulling an "Althouse" and demanding you go back and reread everything and write a more cogent support of your ridiculous disagreement! And, to boot, we can *all* agree on the frivolity of the case riam posted about -- though if I could figure out who to sue to stop the voices inside *my* head I might be quick to the courthouse.

Perhaps we should start a petition to get Sam Perkins to come out of retirement ...

4:21 PM  
Anonymous Anonymous said...

I can see why you thought this is a frivolous lawsuit, but perhaps you should consider that it is a case intended to counter the growing movement to outlaw all forms of chemical birth control. The religious right is attempting to make birth control illegal - they view chemical contraception as an abortion. The morning after pill is seen as an "abortion pill." Wal-mart is bowing to political pressure from the religious right in refusing to stock the morning after pill. At the same time, pharmacists across the country are refusing to stock the ordinary birth control pills! Protecting a woman's right to have her prescription filled is hardly frivolous. By the way, have you heard about any pharmacists refusing to fill a viagra prescription because the patient was unmarried? Probably not.

6:14 PM  
Blogger Kierkegaard Lives said...

anonymous --

I think perhaps your comments only further underscore a big part of why I see this as a frivolous lawsuit. It's a suit intended to further a political agenda, and not to remedy a personal legal harm. I'm far from a member of the religious right, and I'm not in favor of attempting to make birth control illegal. Maybe Wal-Mart is bowing to political pressure; or maybe they are making a business decision not to stock something that is not commonly prescribed; or maybe they are making a decision based on their company's "moral" position on this issue. Regardless, without any actual legal harm suffered by these plaintiffs, I view this as a frivolous lawsuit. You are welcome to disagree with me. And, by the way, I would view a lawsuit based on any pharmacy refusing to fill a Viagra prescription as equally frivolous. Just my opinion, of course.

10:50 AM  
Anonymous Anonymous said...

i am so sick of hearing all of the ignorant lawsuits from ignorant people involving walmart. I used to have the same oh god wal mart mentality as everyone else but since working for the retailer its much different and it only gets more rediculous. if people are needing emergency contraception maybe they should take the necessary precautions, i.e. BIRTH CONTROL, CONDOMS OR ABSITNENCE. it is not walmarts responsibility for ohter irresponsible peoples bad judgement. if you go out and have irresponsible sex without thinking if the consequences.. well its not walmarts fault if they happen to be out of stock or they do not carry it as it hasnt been needed in the past. So people that file frivolous lawsuits as this need to get a life!

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