EAST ST. LOUIS - Pharmacy benefit managers Express Scripts and Optum Rx claim St. Clair County can’t sue them to recover the county’s spending on opioid addiction because they didn’t make, distribute, or prescribe opioids.
Their counsel Jonathan Cooper of Washington moved on March 11 to dismiss a complaint that special county counsel David Cates of Swansea filed.
Cooper wrote, “Defendants here are too far removed from any direct harm to the county to support liability for injuries caused by third parties’ alleged misuse of opioids.”
“Processing claims for coverage of a legally prescribed medication, as pharmacy benefit managers do, does not directly injure anyone,” he added.
Cooper claimed if local governments could sue to recover every expenditure, courts would effectively replace legislatures in funding local governments.
Cates filed the complaint at St. Clair County Circuit Court, and the benefit managers removed it to U.S. district court on the basis of diversity jurisdiction as citizens of other states.
Cates alleged that Express Scripts and Optum Rx created a public nuisance by negligently disseminating massive quantities of prescription opioids into the county.
He alleged they caused deaths, injuries, fear and discomfort.
He also alleged they acted as suppliers to illegal drug dealers.
He alleged they misrepresented that opioids were proper for chronic pain and represented that alternatives were less effective.
And Cates alleged they failed to track and report suspicious orders.
“They control what drugs virtually all health insurance providers for over 260 million people cover,” he wrote.
Cates alleged that in concert with manufacturers, they choose which drugs appear on formularies that determine which drugs will be reimbursed.
“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.
Cooper began his motion to dismiss the complaint by stating the county didn’t seek relief on behalf of individuals who suffered from opioid addiction.
“Instead it seeks compensation for the costs of performing local government functions such as providing police and emergency services,” he wrote.
Cooper claimed that in 2004, the Illinois Supreme Court held that similar claims by local governments should be dismissed on the pleadings.
He claimed that in 2021, a Cook County judge dismissed a public nuisance claim that the state brought against opioid manufacturers.
Also in 2021, the Oklahoma Supreme Court concluded that public nuisance law didn’t support a claim against opioid manufacturers.
Cooper claimed the county didn’t sufficiently allege that defendants violated a statute or ordinance.
He claimed the only statutes the county cited were the entirety of state and national acts on controlled substances.
He claimed naked assertions of violations don’t meet the federal pleading standard.
He added that the drug enforcement administration closely regulates opioids.
“To allow a public nuisance claim based on the distribution of a lawful product would improperly collapse the boundary between public nuisance law and product liability,” he wrote.
Cooper claimed courts consistently held that manufacturers and distributors of a lawful product are not legally responsible for the harm caused by third parties’ misuse of that product.”
He claimed the involvement of his clients was even more remote.
“It is undisputed that defendants did not manufacture, distribute, or prescribe any allegedly harmful product,” he wrote.
He quoted an allegation in the complaint that Express Scripts and Optum Rx owed the county a duty to exercise reasonable care in advertising, marketing, promotion and labeling.
“That is fatal to this claim because defendants do not advertise, market, promote or label opioid products,” he wrote.
Cooper claimed the county failed to plausibly allege that Express Scripts and Optum Rx proximately caused injuries.
He claimed a statute of limitations barred negligence claims and Medicare law preempted the county's claims.
He added that Medicare and Medicaid Services approves all Medicare formularies.
“The county cannot use Illinois law to supplant Medicare and Medicaid Services’ decisions,” he wrote.
District Judge Stephen McGlynn presides.