West Virginia Attorney General J.B. McCuskey (R) has filed a lawsuit against Express Scripts as a “bad actor” in the opioid-involved overdose crisis, making the state the latest to turn its litigation on pharmacy benefit managers (PBM).
McCusky filed the suit in the United States District Court for the Northern District of West Virginia on August 15, alleging violations of the West Virginia Consumer Credit and Protection Act and characterizing Express Scripts as one of the most influential entities in fueling irresponsible prescribing.
“Express Scripts dictated which opioids were available and how easily they could be obtained,” the lawsuit states. “Express Scripts was not a passive actor. It was an architect of the crisis.”
McCusky spoke about the lawsuit with MetroNews Talkline on August 18, then announced the news at a press conference later that day.
PBM are third-party companies that broker drug-pricing deals with every major player in the pharmaceutical supply chain, from manufacturers to insurers, and collect kickbacks as they go. They are notorious for operating without oversight and are directly responsible for rising prescription drug prices, despite their claims that they exist to keep prices low.
Express Scripts (as the company remains popularly known, though in 2020 it rebranded as Evernorth Health Services) is the second-largest PBM in the United States, after CVS Caremark. Together with third-largest PBM OptumRx Inc, they control about 80 percent of the US market.
West Virginia appears to be the fourth state to file opioid litigation against Express Scripts, but the first to do so only against Express Scripts. Utah jointly sued Express Scripts and OptumRx in December 2024. Michigan and Kentucky did the same earlier that year, as did LA County in 2023. Oklahoma sued CVS Caremark in January, and OptumRx settled a federal lawsuit over alleged improper dispensing practices in 2024.
Prescription opioid litigation to date has more heavily focused on manufacturers and pharmacies, rather than PBM. The Department of Justice sued CVS Pharmacy Inc (not CVS Caremark) in December 2024, alleging both fraud and “massive public harm” from improper opioid dispensing practices. Walgreens, the nation’s next-largest pharmacy chain, already settled a nearly identical DOJ suit in April.
But Express Scripts, like CVS Caremark and OptumRx and the handful of smaller PBM that control the remainder of the market, is also a pharmacy.
Express Scripts faces allegations not just in its capacity as a PBM, but also as a pharmacy and a medical data provider.
“Express Script owns and maintains an online pharmacy here in West Virginia,” McCusky told MetroNews Talkline. “And so they are actually completely vertically integrated insofar as you could order opioid prescriptions through their online or their mail order pharmacy, and they controlled that system from top to bottom.”
In April, the National Association of Attorneys General represented a coalition of most of the country’s state AGs in a letter urging Congress to pass legislation banning PMB from owning or otherwise having financial stake in pharmacies, as an obvious conflict of interest.
The allegations are brought against Express Scripts not just in its capacity as a PBM, but also as a pharmacy and a medical data provider. The company’s prescription drug revenue was $54.4 billion in 2021.
“We have this system where Express Scripts controls an enormous amount of the marketplace,” McCusky continued in his interview on MetroNews Talkline. “They control the data, they control the cost of the drugs, they control how the drugs are marketed. And it’s not just Express Scripts … all of these [PBM] have sort of weaseled their way into the middle of our healthcare and they’ve done so in a way that has made their companies incredibly profitable and really large. They all started as essentially part of the drug, the pharmacy world, and as a result of their manipulation in the market they’ve become bigger than the very companies that spun them off.”
He also accused the company of “creating a foster care crisis that is beyond contemplation.”
Image via United States Department of Veterans Affairs