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West Virginia AG files lawsuit against Express Scripts for role in opioid crisis

Attorney General J.B. McCuskey called Express Scripts the true architect of West Virginia’s substance use disorder crisis during a press conference Monday announcing a federal civil lawsuit against the pharmacy benefit management company. (Photo by Steven Allen Adams)

CHARLESTON – Alleging that it was the true “architect” of West Virginia’s substance use disorder crisis first fueled by prescription opioids, Attorney General J.B. McCuskey announced a lawsuit against the owners of Express Scripts.

In a press conference Monday morning, McCuskey announced that his office filed a lawsuit against Evernorth Health Inc., formerly known as Express Scripts Holding Company, and other subsidiaries of the large Missouri-based pharmacy benefits management (PBM) company.

“The opioid crisis did not emerge in a vacuum. It was ignited and perpetuated by actors across the entire pharmaceutical supply chain,” McCuskey said. “Manufacturers, distributors, pharmacies, and pharmacy benefit managers – including Express Scripts – each played a pivotal role.

“While opioid manufacturers have correctly drawn much of the public scrutiny, Express Scripts and other pharmacy benefit managers have worked to keep their own roles obscured,” McCuskey continued. “The veil of secrecy behind what these pharmacy benefit managers have done here in West Virginia is finally going to be lifted.”

The lawsuit was filed Friday in the U.S. District Court for the Northern District of West Virginia. The state alleges that Express Scripts, by prioritizing profits and leveraging its market dominance, contributed to the oversupply of prescription opioids in West Virginia and the deepening of the substance use disorder epidemic in the state.

The lawsuit claims that Express Scripts violated West Virginia law by conspiring with manufacturers, incentivizing sales through formulary placements, weakening safety protocols, ignoring warning signs, and improperly dispensing opioids via mail-order pharmacies. Despite possessing extensive data and influence over the prescription drug system, the PBM allegedly used its position to fuel the crisis from behind the scenes rather than safeguard public health, prompting the state to seek significant financial accountability.

“Express Scripts played a central and concealed role in enabling the widespread oversupply of opioids through a combination of intentional conduct, strategic partnerships, calculated intention, and action,” McCuskey said. “Express Scripts helped facilitate the unchecked prescribing, dispensing, and sale of opioids in West Virginia. As a key intermediary between drug manufacturers, pharmacies, and insurers, Express Scripts inserted itself directly into the supply chain. In so doing, it assumed legal duties to act responsibly. It did not do so.”

The 129-page case was assigned to U.S. District Court Judge John Bailey in Wheeling. The state is being represented by the Charleston-based law firm of Hissam Forman Donovan Ritchie. Express Scripts is facing similar lawsuits in Utah, Kentucky, and Michigan. A request for comment from Evernorth Health was not returned.

McCuskey is asking the courts to rule in West Virginia’s favor and award the state money, including actual damages to cover the state’s financial losses, punitive or exemplary damages due to Express Scripts alleged egregious conduct, remedies for Express Scripts to give up any profits gained for its alleged conduct, and a court-ordered corrective action plan to prevent future bad behavior.

Express Scripts was once labeled the largest PBM company by Fortune Magazine. West Virginia Public Employees Insurance Agency (PEIA) contracts with Express Scripts for PBM services. In some cases, Express Scripts requires PEIA plan participants to purchase specialty drugs from its in-house mail-order pharmacy, Acreddo.

According to an article in 2024 by Ohio Capital Journal, Express Scripts did not dispute having “…paid itself more than 100 times as much for the most expensive class of drugs than it could have paid if it had gotten them elsewhere.”

“…It is clear that for at least 23 specialty drugs, Express Scripts has at times paid wildly more to its own mail-order pharmacy than it would have if it used prices listed on publicly available databases,” the article continued.

“It is interesting that the pharmacy benefit managers created themselves under the auspices of controlling pharmaceutical drug prices. That was why they were created,” McCuskey said. “But not only did they make our drug prices skyrocket, but they also weaseled their way into the system in a way that enables them to push certain drugs that are making certain actors way more money.”

The State of West Virginia and local governments are set to receive as much as $940 million through settlements in 2023 with Johnson and Johnson, Teva, Walgreens, CVS, Kroger, Walmart, Allergan and Rite Aid for their part in manufacturing and distributing prescription opioids in West Virginia, feeding a substance use crisis. So far, the state has received more than $290 million.

In June, McCuskey announced that attorneys general from across the nation had signed on to a settlement agreement with Purdue Pharma and the Sackler family for more than $7.4 billion. Local governments will be asked to also sign on to the settlement agreement subject to ongoing bankruptcy proceedings. Under that agreement, West Virginia could receive up to $53 million over the next nine years.

Opioid settlement funds are distributed according to the memorandum of understanding that created the West Virginia First Foundation, the non-profit created by the Attorney General’s Office, the Legislature, and county and city governments. The West Virginia First program divides settlement dollars from opioid manufacturers and distributors, with 24.5% going to cities and counties, 3% going to the Attorney General’s Office and 72.5% going to the West Virginia First Foundation.

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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