Webb County, Texas, and Two Teamsters Health & Welfare Funds Seek Federal Court Injunction for Top Three Pharmacy Benefit Managers To Take Immediate Steps to Address Country’s Opioid Crisis

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Sept. 18, 2018, CLEVELAND – A small county in south Texas joined by two Employer-Teamsters Locals filed a joint motion in federal court on Friday seeking an injunction directing the nation’s three largest prescription drug plan providers, known as Pharmacy Benefit Managers (PBM), to take immediate steps that could dramatically reduce the escalating inappropriate distribution and abuse of prescription opioids.

The motion filed by Webb County, Texas, Employer-Teamsters Local Nos. 175 & 505 Health & Welfare Fund, and Employer Teamsters Local Nos. 175 & 505 Retiree Health & Welfare Fund claims that Caremark, Express Scripts, and OptumRx, which combined control nearly 90 percent of America’s drug benefits, have mechanisms readily available to impact the ease with which opioids and opioid overdose and addiction treatments are dispensed into communities.

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, and negotiate the incentive discounts afforded consumers for certain prescription drugs, including addictive opioids.

Webb County was the first plaintiff in the country to hold PBMs accountable for the man-made national opioid crisis. Its initial case, along with more than 950 similar cases against opioid manufacturers, distributors, pharmacy chains, and others has been consolidated in multi-district litigation, or MDL, before Federal Judge Dan Polster, the same judge who must now consider the immediate injunction request. Polster already has made clear that the Court’s priority is to abate the opioid epidemic.

“The stakes, in this case, are incredibly high,” Judge Polster said. “Any thinking person should feel terrible about the situation we’re in,” he said.

According to Joanne Cicala, lead counsel for Webb County, PBMs have their fingerprints on every opioid prescription that is filled. “PBMs have admitted that nearly 50 percent of prescriptions for first-time opioid users are not compliant with federal guidance from the Centers for Disease Control and Prevention (CDC),” she said.

“Webb County is trying to draw the Court’s attention to the fact that a mechanism to address the urgency of this crises has been hiding in plain sight,” Cicala said. “That mechanism involves simple edits to current PBM formularies that will impose restrictions on opioids consistent with existing CDC guidelines and enhance access to alternative pain relief and treatment medications,” she said.

According to the joint motion, although PBMs make claims that they are in a unique position to help abate the opioid epidemic, their new opioid management programs still are not compliant with the CDC Guideline they also claim to support. If approved, the injunction will require the Big Three PBMs to take a constructive and necessary step toward an immediate and meaningful impact on the improper flow of opioids to the public, Cicala said.

Cyrus Mehri, lead counsel for the Employer-Teamsters Local Nos. 175 & 505 Health & Welfare Fund, and Employer Teamsters Local Nos. 175 & 505 Retiree Health & Welfare Fund said, “When this proceeding began in January, the Court made clear that the parties need to take action to abate this crisis this year. The PBMs have critical tools at their disposal to make a difference in people’s lives. We cannot wait any longer,” he said.

Drug overdoses are now the leading cause of death for Americans under the age of 50, and 134 Americans are dying on a daily basis 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.1

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.2

Webb County is represented by The Cicala Law Firm PLLC, based in Dripping Springs Texas. Sanford Heisler Sharp LLC, with offices in Washington DC, Nashville and New York, is co-counsel to The Cicala Law Firm.

Employer-Teamsters Local Nos. 175 & 505 Health & Welfare Fund, and Employer Teamsters Local Nos. 175 & 505 Retiree Health & Welfare Fund are represented by Merhi & Skalet based in Washington DC and Henrichsen Siegel based in Jacksonville, Florida.

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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

2 Id.

Opioid MDL Stakes Rise For Pharmacy Benefit Cos. – Law360

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By Jeff Overley

Law360 (September 17, 2018, 7:22 PM EDT) — The nation’s biggest pharmacy benefit management companies should be forced to clamp down on painkiller prescriptions, according to a new motion that raises the stakes for PBMs in multidistrict litigation over the opioid epidemic and contains fresh signs of friction among plaintiffs attorneys.

The motion for a preliminary injunction Friday targeted CVS Caremark, Express Scripts Inc. and OptumRx Inc., which collectively control most of the PBM market. It sought a court order requiring the three companies to immediately adopt policies consistent with a Centers for Disease Control and Prevention guideline for prescribing opioids.

The request was made as part of two MDL lawsuits: one filed by union benefit plans serving Ohio residents and another filed by Webb County, Texas. It raises the profile of pharmacy benefit managers that have barely been noticed in the MDL, creates the potential for a near-term opioid-crisis response that has proved elusive so far in the MDL, and includes new examples of disagreement among lawyers for plaintiffs in the MDL.

Friday’s motion argued that the PBMs — which decide whether and how drugs should be covered by employers and insurers — have many shortcomings in their policies related to opioids. The PBMs allow “largely unchecked prescribing of opioids for chronic pain,” permit excessive quantities of opioids to be dispensed and improperly restrict access to drugs that treat opioid addiction, the motion said.

By issuing a preliminary injunction to change those practices, U.S. District Judge Dan Aaron Polster could make progress toward his unrealized goal of using the MDL to ease the opioid crisis, the union plans and Webb County argued.

“This motion is required to bring the court’s attention to the fact that it has a tool readily available that will help implement the court’s declared objective,” the motion said.

Notably, Friday’s motion said that Webb County “has endeavored since its case was filed in January 2018 to alert the plaintiff co-leads, the plaintiff executive committee and this court of the PBMs’ unique role in abating the opioid crisis.”

“Those efforts have been ignored,” the motion said.

Motley Rice LLC co-founder Joe Rice, a lead attorney for the plaintiffs, told Law360 on Monday that the efforts “have not been ignored.” He also noted that the PBMs “are not defendants in trial [track] case at this time.”

The allegations of indifference represent the latest dust-up among plaintiffs attorneys in the MDL. The attorneys have also clashed over the selection of a bellwether case for hospitals and the proposed creation of a special litigation track for “opioid babies” with neonatal abstinence syndrome.

The MDL features more than 1,000 cases that are mostly aimed at drug manufacturers, distributors and pharmacies. Only a handful of those cases also target pharmacy benefit managers.

Webb County’s suit says that PBMs “ignore or neglect their assorted contractual undertakings to ensure patient wellness.” The suit filed by union benefit plans says that PBMs have for years been capable of identifying improper prescribing, but that they nonetheless “continued to authorize coverage for millions of unnecessary and/or inappropriate opioid prescriptions.”

A spokesman for Express Scripts declined to comment Monday. Representatives of CVS and OptumRx could not immediately be reached for comment.

The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio. The individual cases are County of Webb v. Purdue Pharma LP et al., case number 1:18-op-45175, and Employer-Teamsters Local Nos. 175 & 505 Health & Welfare Fund et al. v. Purdue Pharma LP et al., case number 1:18-op-45446, in the same court.

–Editing by Dipti Coorg.