Missouri circuit court denies all motions to dismiss
HILLSBORO, MO – JULY 20, 2020 – A recent circuit court decision denied motions by Pharmacy Benefit Managers (PBMs) Caremark, Express Scripts and Optum Rx to dismiss public nuisance and other state law claims alleged by Jefferson County, Missouri, in its effort to hold those responsible for creating and cultivating the country’s opioid epidemic. The court also denied motions to dismiss filed by defendant manufacturers, distributors, and pharmacies from the lawsuit. This groundbreaking ruling lays the foundation for the County to proceed to trial against these powerful PBMs and other defendants.
In a petition filed with the 23rd Judicial Circuit Court, Jefferson County brought suit against 44 opioid manufacturers, opioid distributors, pharmacies, PBMs, and physicians claiming they are liable for the publicly shouldered costs battling the opioid crisis the County continues to face. The petition seeks damages for reimbursement of public costs expended by the cash-strapped County fighting the foreseeable consequences of the opioid epidemic and future expenses to finance necessary County responses related to prevention, treatment, and recovery.
In response to the plaintiff’s petition, all defendants moved to dismiss the County’s claims. Circuit Judge Joseph A. Rathert denied all their requests, a milestone decision that confirms PBMs’ place in the national spotlight as potentially liable along with other defendant groups. PBMs have been named as defendants in dozens of cases nationwide. They are also among the defendants in the federal opioid multi-district litigation (MDL) pending before Judge Dan A. Polster in the U.S. District Court for the Northern District of Ohio.
PBMs are the gatekeepers to prescription drugs. They administer prescription drug plans for more than 266 million Americans and create formularies that determine which drugs are covered by insurance plans, including addictive opioids.
The case before Judge Rathert is not the first to name PBMs as defendants. Webb County, Texas was the first plaintiff in the country to seek to hold PBMs accountable for their essential role in fueling the human-made national opioid crisis. That case was brought forward by The Cicala Law Firm, PLLC, a boutique law firm located near Austin, TX. Joanne Cicala, the lead counsel for Webb County, and her firm, were brought in by the trial team for Jefferson County, MO, to assist with its prosecution. That trial team is led by Mark Lanier of The Lanier Law Firm, PC; Carey Danis & Lowe; the Holland Law Firm; Holloran, Schwartz & Gaertner; Thurman, Howald, Weber, Senkel & Norrick, LLC; and the Charles A. Hurth, III Law Offices.
The Missouri case is the first in the country to test a county’s claims against PBMs for addressing the harm caused by the opioid epidemic. The circuit court’s ruling means discovery shall proceed against these PBMs in preparation for trial.
According to Cicala, PBMs have their fingerprints on every opioid prescription that has been filled and paid for by insurance. In recent years, certain PBMs have admitted that nearly 50% of prescriptions for first-time opioid users are not compliant with federal guidance from the Centers for Disease Control and Prevention.
“PBMs have acknowledged that they are uniquely situated to abate the opioid crisis,” Cicala said. “And that has always been the case. This national epidemic would look much different had these PBM defendants used their tremendous market power in a manner consistent with their stated commitment to health and safety. To that end, we seek not only an adjustment in their practices but damages on behalf of our clients for the harm the PBMs’ conduct has foreseeably caused,” she said.
Drug overdoses are now the leading cause of death for Americans under the age of 50, and 134 Americans are dying daily because of the opioid epidemic. The number of Americans who died of drug overdose in 2017 was roughly equal the number of Americans who died in the Vietnam, Iraq, and Afghanistan wars combined.
According to the CDC, the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement due to opioid misuse alone is $78.5 billion a year.
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1 Nicholas Kristof, Opioids, a Mass Killer We’re Meeting With a Shrug, New York Times, Jun. 22, 2017, https://www.nytimes.com/2017/06/22/opinion/opioid-epidemic-health-care-bill.html
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