EAST ST. LOUIS - David Cates of Swansea, as special counsel to St. Clair County, claims pharmacy benefit managers Express Scripts and Optum Rx negligently disseminated massive quantities of prescription opioids into the county.
A complaint he filed at St. Clair County Circuit Court in December alleged the defendants caused deaths, injuries, fear and discomfort.
He claimed they negligently acted as supplier to illegal drug dealers.
He also claimed they conspired with manufacturers, physicians and pharmacies, but he didn’t name any of them as defendants.
Express Scripts and Optum Rx later removed the complaint to U.S. district court.
According to Cates, the defendants misrepresented that opioids were proper for chronic pain.
He claimed they represented that opioids weren’t addictive, had no withdrawal symptoms and could increase functionality.
They also allegedly represented that alternatives were less effective.
“Defendants failed to develop an adequate monitoring system to track suspicious orders and as a result repeatedly failed to report suspicious orders,” he wrote.
He claimed Express Scripts and Optum Rx manage prescription drug benefits for nearly 95% of the population.
“They control what drugs virtually all health insurance providers for over 260 million people cover,” he wrote.
“In concert with drug manufacturers who provide them with assorted complicated payments as incentives, pharmacy benefit managers choose which drugs appear on their formularies, thus determining which drugs will be reimbursed,” he added.
“People with chronic pain thus are at the mercy of pharmacy benefit managers and their self serving formularies,” he continued.
Cates claimed they make it more difficult to get medication that is less addictive while making it easier to get opioids.
“No single actor is to blame for this epidemic, but pharmacy benefit managers play a unique role in controlling which pain medications reach the marketplace and which do not,” he wrote.
He sought to reimburse public expenses and cover future costs of ending the crisis and repairing the harm it has done to the county.
Express Scripts and Optum Rx removed the complaint to district court on Jan. 26, asserting diversity as citizens of Missouri and Minnesota.
Express Scripts counsel Christopher Lang of St. Louis County also asserted federal jurisdiction as an officer of the federal government.
Lang claimed the defense department contracted with Express Scripts to administer a Tricare home delivery and mail order pharmacy for members across the country.
He claimed the Tricare statute requires the defense secretary to contract out the administration of the program.
He added that the department dictates nearly every aspect of Express Scripts’ responsibilities in supporting Tricare.
Lang claimed a pharmacy and therapeutics committee specifies which drugs are authorized and sets requirements for reviews to assure necessity, appropriateness and cost effectiveness.
Tricare’s contract allegedly states the government will acquire covered drugs with government funds for use by the government.
Lang claimed the Tricare statute expressly preempts state laws to the extent that the secretary determines those laws are inconsistent with a Tricare contract or preemption is necessary to implement or administer the contract or achieve any other important Federal interest.
“The Secretary has determined that such preemption is necessary," he wrote.
“Express Scripts did not have any greater awareness than the federal government did of the dangers of prescription opioids,” he added.
Optum Rx counsel Michael Kaeding of North Carolina claimed Optum Rx acted under the direction of a federal officer in providing services to Veterans Health Administration.
Keading claimed a pharmacy and therapeutics committee has complete control over its formulary.
He added that Optum Rx’s contract provides for unusually close oversight, detailed regulation, monitoring and supervision.
The district court clerk randomly assigned Magistrate Judge Mark Beatty, who will preside unless a party declines consent to magistrate jurisdiction.
In that event the clerk will assign a district judge.