Optum and Express Scripts want opioid special master removed after reply-all-email incident

Used blister packs containing medicines, tablets and pills are seen in this illustration taken June 30, 2018. REUTERS/Russell Boyce/Illustration Acquire License Rights

Oct. 31 (Reuters) – Pharmacy benefit managers OptumRx and Express Scripts asked a federal appeals court to disqualify a longtime special master in nationwide opioid litigation from working on cases against them, after Accidentally clicking “Reply All” in an email. what they said revealed him to be biased.

In a motion filed Monday with the 6th U.S. Circuit Court of Appeals, the companies said the August email, in which special master David Cohen wrote that pharmacy benefit managers (PBMs) “knew a lot » on illicit opioid prescriptions, created an appearance of impartiality. this disqualified him.

“Whether Special Master Cohen intended to send his email is irrelevant,” the PBMs said. “Once the parties became aware of his apparent bias and bias, the damage was done.”

Cohen in September refused the PBMs’ request to recuse himself, and U.S. District Judge Dan Polster in Cleveland, who oversees the thousands of lawsuits consolidated into multidistrict litigation, refused to remove him.

Since Polster appointed him in 2018, Cohen has helped administer the sprawling litigation, including overseeing discovery litigation and making recommendations on legal issues.

Cohen declined to comment. A spokesperson for lawyers for the lead plaintiffs, who opposed Cohen’s disqualification, had no immediate comment.

Opioid litigation, which includes thousands of lawsuits brought by local governments across the country, has already resulted in settlements worth more than $50 billion resolving allegations that drugmakers concealed risks related to the addiction to painkillers and that distributors and pharmacies were ignoring warning signs that the pills were being diverted into illegal channels.

So far, less attention has been paid to the roughly 80 cases against PBMs like Optum, owned by UnitedHealth Group (UNH.N), and Express Scripts, owned by Cigna Group (CI.N). PBMs act as intermediaries between pharmaceutical companies, health plans, and pharmacies to negotiate prescription drug prices and decide which drugs will be covered by insurance.

The plaintiffs allege that PBMs colluded with drug manufacturers to promote dangerous drugs and failed to limit access to them in response to red flags. Plaintiffs and PBMs are currently in the process of choosing so-called benchmark cases to go to trial and test the strength of their claims.

Optum and Express Scripts sought to disqualify Cohen after he emailed a memo to Polster’s attorneys and counsel in which he said he believed the plaintiffs should be allowed to amend their complaints against the PBMs to add the subsidiaries of mail-order pharmacies of the companies as defendants because it “will show what the PBMs knew (and they knew a lot).”

In the same email, Cohen said he believed the PBMs would seek to “complicate and delay” the matter.

In an affidavit submitted to the court, Cohen said he intended to send the email as a note to himself. He said he had no bias in the matter and that the memo represented only “one moment in what is always a long and private deliberative process.”

The appeals court case is In re: OptumRx Inc, 6th US Circuit Court of Appeals, No. 23-3882.

The MDL is In Re: National Prescription Opiate Litigation, U.S. District Court for the Northern District of Ohio, No. 1:17-md-02804.

For plaintiffs: Jayne Conroy of Simmons Hanly Conroy; Joseph Rice of Motley Rice; Paul Farrell of Farrell & Fuller; and Peter Weinberger of Spangenberg Shibley & Liber

For OptumRx: Brian Boone of Alston & Bird

For express scripts: Christopher Michel of Quinn Emanuel Urquhart & Sullivan

Learn more:

For groups fighting America’s opioid crisis, settlement money may be hard to come by

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