MORGANTOWN — A recent filing in Granville’s opioid lawsuit offers an insight into the blame game at play in the national opioid litigation this suit is part of.
In early November, defendant Walgreens filed a Notice of Nonparty Fault in the case. The filing is a formality and is based on state law that allows for fault of parties not named as defendants to be considered. Co-defendant CVS filed a similar one in October and pharmaceutical distributor McKesson filed one in July.
The multidistrict litigation is unfolding in Ohio Federal Court – where defendants Purdue, McKesson, Cardinal Health, AmerisourceBergen and Teva Pharmaceutical Industries all took settlement steps before the first scheduled trial in October.
The town is Granville is among the three dozen West Virginia towns, cities and counties, and more than 2,700 local governments across the U.S. participating in the litigation. Granville’s case was not among the handful of “bellwether” cases set for the first trial and no discovery has been undertaken in this case.
Before dishing out blame, Walgreens points out that that has been no discovery, and a moratorium on case filings makes this notice unnecessary, but it’s doing it out of caution without conceding that the notice is needed at this time or ever.
Walgreens’ first pool of blame falls on importers, distributors, sellers, purchasers and users of illegal drugs. Referring to Granville as “Plaintiff,” it says that if Plaintiff suffered any harm, all those involved in illegal drug sale, distribution or use share fault – whether the drugs were made and used illegally or were legitimate drugs illegally diverted.
Next on Walgreens’ list are prescribers and their supervisors. “To the extent prescribers of opioids illegally dispensed opioids themselves or issued prescriptions without a legitimate medical purpose, including prescribers who operated ‘pill mills’ or who otherwise issued illegitimate prescriptions, those actions caused or contributed to Plaintiff’s alleged injuries, if any.”
Drug makers and drug distributors not already named as defendants in the national litigation may also deserve some blame, Walgreens says.
Federal, state and local governments also deserve a share, Walgreens says. The FDA approves drugs. THE U.S. DEA and FBI enforce drug laws. In West Virginia, and Granville in particular, the boards of medicine, osteopathic medicine, dentistry and nursing all license prescribers. He pharmacy board regulates prescription dispensing.
Walgreens doesn’t fail to wrap in state, county and local law enforcement.
Governments, Walgreens says, “have the ability to regulate the use, prescription, and dispensing of prescription opioids. They have the ability to identify sources of prescription opioid diversion and heroin distribution, and they have the ability and responsibility to provide access to treatment and other means of recovery for those abusing opioids. Discovery will show the degree to which any of these entities failed to undertake timely and effective action causing or contributing to the harm alleged by Plaintiff.”
Health insurers and other third-party payors also join the list. Walgreens incudes private insurers, Medicare and Medicaid and the state Department of Health and Human Resources.
Insurers make prescription coverage decisions, either on their own or in concert with drug makers and pharmacy benefit managers, Walgreens says.
Their coverage decisions – including pricing, incentives and rebates – “may have had the effect of driving patients to opioids and away from alternatives, such as, without limitation, abuse-deterrent formulations of opioids, less addictive forms of analgesics, and physical therapies for pain that do not require prescription drug therapies. Health insurers and other third-party payors may have therefore made it more difficult for patients to obtain, and/or to obtain coverage for, medications and other therapies that are less addictive.”
Insurers, Walgreens says, also may have had access to data about wrongful prescribing, dispensing and use, but failed to act on the information.
Last on Walgreens’ list are pharmacy benefits managers – PBMs. PBM, as explained by The Commonwealth Fund (a healthcare advocacy foundation), are middlemen in the distribution chain. They develop drug formularies for insurers, negotiate prices and rebates with manufacturers and contract with pharmacies for rebates on drug sales.
Walgreens says PBMs control the distribution of opioids by negotiating prices, incentives and rebates. With this leverage they control what drugs go on formularies.
That leverage, Walgreens says, also PBMs to keep other drugs off the market.
“Accordingly PBMs’ decisions may have had the effect of driving patients to opioids and away from alternatives, such as, without limitation, abuse-deterrent formulations of opioids, less addictive forms of analgesics, and physical therapies for pain that do not require prescription drug therapies.”
As with the insurers, Walgreens says PBMs may have played a role in making opioid alternatives less available; and may have had but failed to use data on misprescribing and misusing opioids.
Tweet David Beard @dbeardtdp Email dbeard@dominionpost.com
