Pappert
PHILADELPHIA - Pharmacy benefits managers targeted by government officials and private lawyers are hoping a Philadelphia judge follows the lead of a Massachusetts colleague and tosses an opioid lawsuit filed by the City.
In a joint motion filed on Jan. 15, CVS Health, UnitedHealth Group and Express Scripts moved to dismiss Philadelphia’s lawsuit attempting to hold the PBMs liable for harms flowing from the opioid epidemic. PBMs are the latest companies to face these claims after manufacturers, pharmacies and distributors were defendants in the first wave.
The City’s lawsuit, filed Oct. 30 through private firms including Baron & Budd, claims that the PBMs, for at least the past two decades, conspired with opioid manufacturers to increase prescriptions and sales of opioids while misrepresenting their efforts to promote their safe use.
The City’s complaint alleges violations of city and state unfair trade practice and consumer protection laws, federal racketeering conspiracy violations and common law claims of public nuisance, negligence, conspiracy and concerted action. An eighth count alleges breach of contract against only CVS Health Corporation and its affiliates.
In their joint response, the PBMs raise a number of arguments to Judge Jerry Pappert that the City’s complaint is barred by the relevant statutes of limitations and fails to state the various claims asserted, that the City lacks standing to assert the claims, that certain of the state law claims are preempted by federal law and that public nuisance claims cannot be based on lawfully distributed products.
The PBMs’ statute of limitations arguments mirrors those made in a parallel Boston case that was dismissed as time-barred. The allegations of the City’s complaint, the PBMs asserted, “confirm the City knew of its alleged injuries for many years, and far earlier than October 2021.” The statute of limitations for RICO claims is four years.
The PBMs pointed to allegations in the complaint that the City had formed a task force to “investigate the opioid epidemic in Philadelphia” in 2016. By 2017, the task force had concluded that “’[o]pioid use and addiction… have reached epidemic proportions.’” These admissions, the PBMs claimed, demonstrate that the City “was aware of its injuries since at least 2017.”
Arguing for dismissal of the RICO claims, the PBMs pointed to a case brought in Massachusetts federal district court by the City of Boston against “many of the same defendants” in the Philadelphia case. The Boston case, according to the PBMs, involved “the exact same injuries” over the same timeline as those alleged in the Philadelphia complaint.
The Boston court granted the PBMs’ motion to dismiss “materially identical claims” on statute of limitations grounds even though the Boston case was filed in January 2024, or 21 months before the City of Philadelphia’s action. The City of Boston has appealed the dismissal.
The PBMs likewise argued that the state-law claims should be dismissed as untimely because Philadelphia “has been on notice of Defendants’ alleged role in causing” the City’s injuries “since at least 2018.”
The City detailed in earlier opioid multi-district litigation how PBMs had acted as middlemen in “prescription drug benefits transactions” as early as the 1990s, according to the PBMs. The first opioid complaint against PBMs was filed by Webb County, Texas, in 2018 and was transferred to the MDL in which Philadelphia was involved.
In that litigation, Philadelphia claimed it “learn[ed] that it had been injured by the PBM Defendants’ actions.” The Webb County complaint described in detail the alleged role the PBMs played in causing the opioid epidemic and formed the basis of similar lawsuits by other local governments in 2018 and 2019. “Thus, by 2018 and 2019, knowledge of claims against PBMs was ‘widespread,’” the PBMs asserted.
The PBMs again argued that if the Boston case, which had been filed in January 2024 on the same facts, was dismissed on statute of limitations grounds, then the Philadelphia case, filed in October 2025, should also be dismissed.
The City’s arguments that the relevant statutes of limitations should be equitably tolled do not apply, according to the PBMs’ motion. The federal RICO limitations period is unaffected by state-law equitable doctrines, the PBMs argued, and the City’s other theories of tolling are undermined by the facts alleged by the City, which suggest it was aware of the asserted injuries as early as 2018.
There is no continuing violation that would toll the statutes of limitations, the PBMs also claimed. Though the City alleges that the opioid epidemic is ongoing, the PBMs argued, the complaint also “acknowledges that the volume of opioid drugs distributed in Philadelphia returned to pre-2006 levels in 2019.”
The City’s assertions of continuing misconduct, according to the PBMs, are only “allegations of continuing harm,” which cannot substantiate application of the continuing violations doctrine.
Several of the Optum defendants filed a separate motion to dismiss for lack of personal jurisdiction. CVS Health and its affiliates filed a third motion limited to the breach of contract claims against it.
