Read the Full Article at Law360.com
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.