Michigan Attorney General Sues PBMs for Their Role in Opioid Crisis

On October 24, 2024, Michigan Attorney General Dana Nessel announced a lawsuit against pharmacy benefit managers (PBMs) OptumRX, and ExpressScripts for their role in contributing to the opioid epidemic in the state.

The History

Since taking office in 2019, Attorney General Nessel has focused on combatting the opioid crisis in the state and holding accountable those who contributed to it. In February 2024, she joined a group of 39 attorneys general urging Congress to take stronger action to regulate PBMs on the Federal level. In March 2024, she launched a website dedicated to opioid settlement distributions. In June 2024, Attorney General Nessel joined a bipartisan coalition of 32 attorneys general asking the US Supreme Court to rule on the extent of state authority in regulating PBMs.

The PBMs OptumRX, Express Scripts, and CVS Caremark control over 80% of the pharmacy benefit market in Michigan. Attorney General Nessel entered into a national settlement agreement with CVS Caremark in 2023.

In the October 2024 lawsuit against OptumRX and Express Scripts, Attorney General Nessel alleges that the 2 PBMs colluded and conspired with opioid manufacturers for years, negotiating favorable formulary placement in exchange for monetary kickbacks.

“Pharmacies, manufacturers, and pharmacy benefit managers have reaped huge profits during the opioid epidemic, lining their pockets at the expense of Michiganders struggling with substance use disorder,” Nessel said in a statement. “I am committed to holding companies accountable for their role in this crisis and ensuring that the well-being of Michigan residents always takes precedence over corporate profits.”

The Lawsuit

The lawsuit includes claims of public nuisance and negligence. Specifically, it alleges that the PBMs created statutory and common-law nuisance by promoting opioid use in Michigan. The suit further contends that the PBMs were negligent by breaching their contracts, which stipulated they must use reasonable standards of care in the sale, delivery, and dispensing of opioids. Additionally, Attorney General Nessel alleges that the PBMs participated in illegal marketing of a controlled substance, harming the people of Michigan through the actions of those who misused opiods, thus establishing a claim under the Drug Dealer Liability Act.

The Takeaway

The 3 major PBMs—OptumRX, ExpressScripts and Caremark—have faced numerous lawsuits this year. A resolution through settlement appears likely.

References

AG Nessel sues pharmacy benefit managers for role in opioid crisis. Press release. Michigan.gov. October 24, 2024. Accessed November 11, 2024 https://www.michigan.gov/ag/news/press-releases/2024/10/24/ag-nessel-sues-pharmacy-benefit-managers-for-role-in-opioid-crisis