Goliath vs. David: Optum Rx invokes open meetings law to fight Kentucky counties on opioid suits

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16 hours ago

Tara Hyde, CEO of the Kentucky-based nonprofit People Advocating Recovery, says she has been in recovery for more than a decade from an addiction that began with prescription painkillers. Today she helps others enter recovery and works to reduce stigma around addiction. She wants to see pharmacy benefit managers and other companies held accountable for their role in the overdose crisis. (Sam Foree)
UnitedHealth Group's multibillion-dollar pharmacy benefit manager, Optum Rx, is suing five Kentucky counties in an attempt to force them out of national opioid litigation against the company.
Pharmacy benefit managers, often called PBMs, act as middlemen that negotiate prescription drug prices between drug companies, insurance plans and pharmacies. Some lawyers and advocates say PBMs helped fuel the overdose crisis by failing to restrict the flow of opioid prescriptions.
As governments begin exploring potential lawsuits against PBMs — a step that could represent the next wave in opioid-related litigation — Optum Rx is attempting to shut down those efforts, in some cases before they even fully take shape.
In June, Optum Rx sued Anderson, Boyd, Christian, Nicholas, and Oldham counties in Kentucky for allegedly making decisions about participating in the new wave of national opioid lawsuits behind closed doors, violating Kentucky's open meetings law. Optum Rx is asking courts to effectively force those counties to make their decisions again, this time in open meetings, potentially with the hope that some won't bother because of the administrative burden. The result could be fewer claims against the company and possibly less money for it to pay in a future settlement.
But legal experts call Optum's case 'hypertechnical' and 'frivolous,' and addiction recovery advocates say it could set a dangerous precedent for companies to evade accountability for their role in fueling the overdose crisis.
Christine Minhee — an attorney, national expert on opioid litigation and founder of OpioidSettlementTracker.com — said Optum's suit reminded her of an adage among lawyers: 'If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither is on your side, pound the table.'
'Right now, what we're seeing is it pounding the table,' Minhee said of Optum Rx. The company is 'desperately' trying 'to find some kind of foothold' to get cases against it thrown out.
Minhee said these suits fit a pattern of Optum Rx using thin arguments to try to delay or evade opioid litigation nationwide.
Last year, Optum Rx, along with another PBM, asked a judge to throw out an opioid lawsuit filed by Los Angeles County, claiming during a December hearing that the county hadn't shown harm. The judge appeared skeptical of the claims and ultimately rejected the companies' request.
In April, the same companies tried to oust a federal judge overseeing national opioid litigation, claiming he was biased. Their argument was based partly on a Florida lawyer's having said the judge was 'plaintiff-oriented.' Their attempt failed.
Now, Optum Rx is working to keep five Kentucky counties out of that same sweeping opioid litigation.
That national legal undertaking began more than seven years ago, as jurisdictions saw overdose deaths climb. Many people who had become addicted to prescription painkillers were cut off by their doctors, and some transitioned to using deadlier heroin or fentanyl. Health care and public safety costs skyrocketed. Thousands of cities, counties, and states began suing health care companies for allegedly creating a public nuisance by aggressively marketing prescription painkillers and negligently distributing them.
Those cases were lassoed together into the giant multidistrict litigation, which has resulted in massive settlements. The first few waves of settlements involved opioid manufacturers, distributors and retail pharmacies, with companies such as Johnson & Johnson, CVS and Walgreens agreeing to pay state and local governments billions of dollars. The money is meant to be used for addiction treatment and prevention services — though its rollout has been controversial.
To add a new round of companies as defendants, jurisdictions must undertake a multistep process, said Peter Mougey, a Florida-based attorney who represents many local governments in the massive national litigation. The five Kentucky counties in question were in the early stages of that process, only having asked the judge to amend their complaint, he said. They hadn't added Optum Rx yet.
If Optum Rx's suits are successful, those counties would have the option of redoing the initial steps of the process in a public meeting, then continuing to add Optum Rx as a defendant, Mougey explained. The company may hope that some counties won't undertake the extra administrative effort.
Optum Rx's 'goal is clearly just to wear down and tire out these small counties,' Mougey said. 'They're trying to have a chilling effect on the litigation.'
It's not clear why Optum Rx targeted those five counties out of the many localities undertaking the process to add the company as a defendant. The Kentucky counties range from having fewer than 8,000 residents (Nicholas) to more than 70,000 (Christian). One is among the richest in Kentucky (Oldham), while others are poorer. Boyd County, in Appalachia, is one of the hardest hit, with a recent overdose rate twice the state average.
Optum Rx, in its filing against Boyd County, which was similar to claims against the other counties, said local authorities had taken official legal action by asking the judge to make a change in its case. The suit said such action must be done in a public meeting and that the county did not hold one.
Optum spokesperson Isaac Sorensen told KFF Health News that the company's argument is not about 'a technicality.'
It is 'an important legal requirement designed to ensure accountability and transparency before a county takes legal action,' said the statement Sorensen provided. 'We have found many counties ignored this requirement, alongside their duty to preserve relevant evidence, and Optum Rx will defend against these improper legal actions.'
The five Kentucky counties disagree with these assertions, according to court records. As of late July, all five had filed motions to dismiss Optum Rx's claim.
Boyd County, like the others, argued in its motion to dismiss that asking a judge to amend its complaint was a routine, procedural step that did not require a public meeting. Optum Rx jumped the gun, the county argued, filing a case before any final action had been taken.
'No amended complaint has been filed. No new defendant, OptumRx included, has been added. No new lawsuit has been initiated,' Boyd County's response said.
The county also pointed out that it held an open meeting in 2017 that kicked off its involvement in the national litigation and authorized future amendments to that litigation.
Hearings on the counties' motions to dismiss Optum Rx's suits are set for late August and early September, according to court records.
These cases are shaping up to be a Goliath-versus-David legal action. Although Oldham County is the wealthiest of the Kentucky counties that Optum Rx sued, its most recent budget is less than 0.1% of Optum Rx's annual revenue, which the company reported as exceeding $133 billion in 2024.
Oldham County Attorney D. Berry Baxter told KFF Health News he'd seen the impact of the opioid epidemic as a prosecutor working on a growing number of drug-related cases over the years. Now, as settlement money is arriving from other companies, it has funded increased addiction treatment in local jails. More settlement money from additional companies could expand such services, Baxter said.
If Optum Rx succeeds in kicking Kentucky counties out of the national litigation, it would set 'a really horrific precedent' for other PBMs and health care companies to do something similar, said Tara Hyde, CEO of the statewide nonprofit People Advocating Recovery.
Hyde said she's been in recovery for more than a decade from an addiction that began with prescription painkillers for a broken leg. She wants to see PBMs and other companies held accountable and made to change their processes to prevent future crises.
Despite a recent decrease in overdose deaths nationwide, Hyde said people in her state, their families, and the economy are still hurting.
'Recovery doesn't just happen overnight,' she said. 'Without these dollars that have been a direct result of people being misled, mistreated and taken advantage of, we will still be detrimentally impacted.'
This story is republished from KFF Health News, a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF — the independent source for health policy research, polling, and journalism.
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