UnitedHealth Group’s multibillion-dollar pharmacy profit supervisor, Optum Rx, is suing 5 Kentucky counties in an try to pressure them out of nationwide opioid litigation in opposition to the corporate.
Pharmacy profit managers, typically known as PBMs, act as middlemen that negotiate prescription drug costs between drug corporations, insurance policy, and pharmacies. Some attorneys and advocates say PBMs helped gasoline the overdose disaster by failing to limit the circulate of opioid prescriptions.
As governments start exploring potential lawsuits in opposition to PBMs — a step that would signify the following wave in opioid-related litigation — Optum Rx is making an attempt to close down these efforts, in some instances earlier than they even absolutely take form.
In June, Optum Rx sued Anderson, Boyd, Christian, Nicholas, and Oldham counties in Kentucky for allegedly making choices about taking part within the new wave of nationwide opioid lawsuits behind closed doorways, violating Kentucky’s open conferences legislation. Optum Rx is asking courts to successfully pressure these counties to make their choices once more, this time in open conferences, probably with the hope that some received’t hassle due to the executive burden. The consequence might be fewer claims in opposition to the corporate and probably much less cash for it to pay in a future settlement.
However authorized consultants name Optum’s case “hypertechnical” and “frivolous,” and habit restoration advocates say it might set a harmful precedent for corporations to evade accountability for his or her function in fueling the overdose disaster.
Christine Minhee, an lawyer, a nationwide professional on opioid litigation, and founding father of OpioidSettlementTracker.com, mentioned Optum’s swimsuit reminded her of an adage amongst attorneys: “If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither is on your side, pound the table.”
“Right now, what we’re seeing is it pounding the table,” Minhee mentioned of Optum Rx. The corporate is “desperately” attempting “to find some kind of foothold” to get instances in opposition to it thrown out.
Minhee mentioned these fits match a sample of Optum Rx utilizing skinny arguments to attempt to delay or evade opioid litigation nationwide.
Final yr, Optum Rx, together with one other PBM, requested a decide to throw out an opioid lawsuit filed by Los Angeles County, claiming throughout a December listening to that the county hadn’t proven hurt. The decide appeared skeptical of the claims and finally rejected the businesses’ request.
In April, the identical corporations tried to oust a federal decide overseeing nationwide opioid litigation, claiming he was biased. Their argument was primarily based partly on a Florida lawyer’s having mentioned the decide was “plaintiff-oriented.” Their try failed.
Now, Optum Rx is working to maintain 5 Kentucky counties out of that very same sweeping opioid litigation.
That nationwide authorized endeavor started greater than seven years in the past, as jurisdictions noticed overdose deaths climb. Many individuals who had turn out to be hooked on prescription painkillers have been lower off by their docs, and a few transitioned to utilizing deadlier heroin or fentanyl. Well being care and public security prices skyrocketed. Hundreds of cities, counties, and states started suing well being care corporations for allegedly making a public nuisance by aggressively advertising prescription painkillers and negligently distributing them.
These instances have been lassoed collectively into the large multidistrict litigation, which has resulted in huge settlements. The primary few waves of settlements concerned opioid producers, distributors, and retail pharmacies, with corporations akin to Johnson & Johnson, CVS, and Walgreens agreeing to pay state and native governments billions of {dollars}. The cash is supposed for use for habit therapy and prevention companies — although its rollout has been controversial.
So as to add a brand new spherical of corporations as defendants, jurisdictions should undertake a multistep course of, mentioned Peter Mougey, a Florida-based lawyer who represents many native governments within the huge nationwide litigation. The 5 Kentucky counties in query have been within the early levels of that course of, solely having requested the decide to amend their grievance, he mentioned. They hadn’t added Optum Rx but.
If Optum Rx’s fits are profitable, these counties would have the choice of redoing the preliminary steps of the method in a public assembly, then persevering with so as to add Optum Rx as a defendant, Mougey defined. The corporate might hope that some counties received’t undertake the additional administrative effort.
Optum Rx’s “goal is clearly just to wear down and tire out these small counties,” Mougey mentioned. “They’re trying to have a chilling effect on the litigation.”
It’s not clear why Optum Rx focused these 5 counties out of the various localities endeavor the method so as to add the corporate as a defendant. The Kentucky counties vary from having fewer than 8,000 residents (Nicholas) to greater than 70,000 (Christian). One is amongst the richest in Kentucky (Oldham), whereas others are poorer. Boyd County, in Appalachia, is among the hardest hit, with a current overdose price twice the state common.
Optum Rx, in its submitting in opposition to Boyd County, which was just like claims in opposition to the opposite counties, mentioned native authorities had taken official authorized motion by asking the decide to make a change in its case. The swimsuit mentioned such motion should be performed in a public assembly and that the county didn’t maintain one.
Optum spokesperson Isaac Sorensen instructed KFF Well being Information that the corporate’s argument shouldn’t be about “a technicality.”
It’s “an important legal requirement designed to ensure accountability and transparency before a county takes legal action,” mentioned the assertion Sorensen offered. “We have found many counties ignored this requirement, alongside their duty to preserve relevant evidence, and Optum Rx will defend against these improper legal actions.”
The 5 Kentucky counties disagree with these assertions, in response to court docket information. As of late July, all 5 had filed motions to dismiss Optum Rx’s declare.
Boyd County, just like the others, argued in its movement to dismiss that asking a decide to amend its grievance was a routine, procedural step that didn’t require a public assembly. Optum Rx jumped the gun, the county argued, submitting a case earlier than any ultimate motion had been taken.
“No amended complaint has been filed. No new defendant, OptumRx included, has been added. No new lawsuit has been initiated,” Boyd County’s response mentioned.
The county additionally identified that it held an open assembly in 2017 that kicked off its involvement within the nationwide litigation and approved future amendments to that litigation.
Hearings on the counties’ motions to dismiss Optum Rx’s fits are set for late August and early September, in response to court docket information.
These instances are shaping as much as be a Goliath-versus-David authorized motion. Though Oldham County is the wealthiest of the Kentucky counties that Optum Rx sued, its most up-to-date price range is lower than 0.1% of Optum Rx’s annual income, which the corporate reported as exceeding $133 billion in 2024.
Oldham County Lawyer D. Berry Baxter instructed KFF Well being Information he’d seen the impression of the opioid epidemic as a prosecutor engaged on a rising variety of drug-related instances over time. Now, as settlement cash is arriving from different corporations, it has funded elevated habit therapy in native jails. Extra settlement cash from extra corporations might broaden such companies, Baxter mentioned.
If Optum Rx succeeds in kicking Kentucky counties out of the nationwide litigation, it might set “a really horrific precedent” for different PBMs and well being care corporations to do one thing related, mentioned Tara Hyde, CEO of the statewide nonprofit Folks Advocating Restoration.
Hyde mentioned she’s been in restoration for greater than a decade from an habit that started with prescription painkillers for a damaged leg. She desires to see PBMs and different corporations held accountable and made to alter their processes to stop future crises.
Regardless of a current lower in overdose deaths nationwide, Hyde mentioned folks in her state, their households, and the financial system are nonetheless hurting.
“Recovery doesn’t just happen overnight,” she mentioned. “Without these dollars that have been a direct result of people being misled, mistreated, and taken advantage of, we will still be detrimentally impacted.”
