Opioid lawsuit removed to federal court

By Kyla Asbury | Apr 19, 2018

CHARLESTON – A lawsuit filed by four municipalities against 14 pharmacies regarding the opioid epidemic in West Virginia has been removed to federal court.

Express Scripts Inc. and Express Scripts Holding Company filed the notice of removal and alleged that some of the defendants were fraudulently misjoined.

“There is complete diversity under the separate and distinct theory of fraudulent misjoinder,” the notice states. “The Pharmacy Defendants are fraudulently misjoined because the handful of allegations against them concern dispensation of addictive opioids, which has nothing to do with the alleged collusion between Express Scripts and Purdue in denying a prior authorization request from PEIA.”

The claims against the pharmacies are misjoined because they do not arise out of the same transaction or occurrence as the claims against Express Scripts, according to the notice.

“Plaintiffs’ claims against Express Scripts are premised on an alleged collusion with Purdue to deny PEIA’s request for prior authorization of OxyContin in exchange for incentive payments,” the notice states. “In contrast, Plaintiffs’ claims against the Pharmacy Defendants are premised on generalized allegations that they dispensed addictive opioids.”

Express claims there is simply no overlap between Express Scripts’ alleged collusion with Purdue and the pharmacies’ dispensation of opioid prescription drugs.

The pharmacy also claims that the defendants are fraudulently misjoined because they present no common question of law or fact. It claims there is no alleged factual overlap between the allegations against Express Scripts and the local pharmacy defendants.

“Similarly, there are no common legal issues,” the notice states. “While Plaintiffs assert claims for negligence and unjust enrichment against all the defendants, the legal issues are distinct for Express Scripts and the Pharmacy Defendants.”

Express also claims that there is no commonality for the unjust enrichment claims in the complaint.

“Whether Express Scripts was unjustly enriched by the alleged funding from Purdue has nothing to do with whether the Pharmacy Defendants were unjustly enriched when they profited from the opioid sales,” the notice states.

Express claims the complaint can also be removed under the Class Action Fairness act, stating that the case is essentially a class action lawsuit.

The lawsuit was originally filed last month in Kanawha Circuit Court against Express; McCloud Family Pharmacy; T&J Enterprises; ContinuumCare Pharmacy; Medical Park Pharmacy; MRNB Inc.; RxBytel Inc.; Ride Aid of West Virginia; Kroger Limited Partnership I; Safe Rx Pharmacies; Pastm Inc.; Cross Lanes Family Pharmacy; and Beewell Pharmacy.

The lawsuit alleges the West Virginia Public Employees Insurance Agency in 2001 attempted to persuade Express to require prior authorization for Oxycodone prescriptions for state employee health plan beneficiaries.

Despite specific requests from PEIA, Express chose to instead accept payments from Purdue, the manufacturer of OxyContin, and its affiliates, to continue to flood the West Virginia marketplace with opioids, according to the suit.

The plaintiffs have had to deal with the crippling effects of widespread opioid addiction, according to the suit.

“The epidemic is in part the result of Express Scripts’ enthusiasm, as far back as 2001 and continuing to this day, to suborn its own client’s efforts to minimize opioid prescribing in favor of accepting continued payments from opioid manufacturers to foster continued over-prescription of opioids,” the complaint states.

The municipalities claim the pharmacy defendants regularly filled significantly large numbers of opioid prescriptions that would have been deemed questionable or suspicious or issued for a non-legitimate purpose by a reasonably prudent pharmacy, in violation of the standard of care for pharmacies.

The municipalities are seeking compensatory damages. They are represented by Charles R. “Rusty” Webb of The Webb Law Centre; W. Jesse Forbes of Forbes Law Offices; Paul D. Ellis, city attorney for Charleston; Scott A. Damron, city attorney for Huntington; and Dennis C. Taylor, Debra Price, Shannon W. Conway and Matthew Browne of Talcott Franklin.

Express is represented by Charles R. Bailey and Justin C. Taylor of Bailey & Wyant; and Matthew I. Menchel, Adriana Riviere-Badell, Julian W. Park, Steven G. Kobre and Alana F. Montas of Kobre & Kim.

U.S. District Court for the Southern District of West Virginia case number: 2:18-cv-00580

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Forbes Law Offices, PLLC The Webb Law Centre PLLC U.S. District Court for the Southern District of West Virginia Charleston Division

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