Municipal – Opioids – Public nuisance

From burden to shield: How compliance beats AI driven cyber risks

Where the city of Boston brought suit alleging that two pharmacy benefit managers violated Massachusetts public nuisance law by colluding with opioid manufacturers to misrepresent the risks of such drugs, the dismissal of the public nuisance claim as time-barred should be affirmed because the lower court committed no error in holding that the claim was not tolled under G.L.c. 260, §12
“The City of Boston and its Public Health Commission and Housing Authority (‘the City’) sued two pharmacy benefit managers (‘PBMs’), OptumRx and Express Scripts, on January 12, 2024, in state court. The two defendants were alleged to have violated Massachusetts public nuisance law by colluding with opioid manufacturers to misrepresent the risks of such drugs, leading to injury to the City. The City had brought a similar suit in 2018 against those manufacturers, as well as distributors and pharmacies. After this case was removed to federal court, the PBMs moved to dismiss on grounds that the 2024 suit was brought well after the three-year state statute of limitations period had run. The City opposed dismissal, arguing that its complaint pled a plausible continuing nuisance theory. It also argued that defendants had fraudulently concealed the cause of action from it, and that the time before the discovery of the City’s cause of action had to be excluded in determining the time limit for commencement of the action.
“In a carefully reasoned opinion, the district court granted the PBM’s dismissal motion, finding the City knew or should have known well before 2021 of its alleged injuries from defendants’ actions and yet had not filed suit before the three-year statute of limitations had expired. City of Boston v. Express Scripts, Inc., 765 F. Supp. 3d 31, 38-39 (D. Mass. 2025). …

“The district court rejected the City’s tolling argument under Mass. Gen. Laws ch. 260, §12 for fraudulent concealment, holding that theory ‘does not apply when “the plaintiff has actual knowledge of the claim,”’ which is imputed to a plaintiff who ‘had the means to acquire [the] facts, in circumstances where the probability of wrongdoing was so evident that possession of the means was equivalent to actual knowledge.’ … The court held that the City had actual knowledge of its cause of action under this standard before 2021 based on a number of factors, including its knowledge of the opioid epidemic, its access to the many public investigations by numerous state agencies and litigation brought by cities, towns, and counties, and its knowledge of the National Prescription Opiate Multi-District Litigation (‘MDL’), In re National Prescription Opiate Litigation, No. 1:17-MD-2804 (N.D. Ohio), which included PBM defendants as of 2018. … These and other things ‘made the ‘probability of wrongdoing … so evident’ that reasonable diligence [by the City] would have uncovered it.’ … The City has appealed from the dismissal order, arguing it was in error.
“The PBMs have cross-appealed from the court’s denial of their motion to disqualify Motley Rice, the law firm representing the City in this case. … That firm between 2018 and 2021 had represented the City of Chicago, the District of Columbia, and the State of Hawaii to investigate OptumRx. The court found persuasive the reasoning of the MDL court in denying a similar motion to disqualify Motley Rice. …
“As to OptumRx’s cross-appeal, we affirm the denial of the motion to disqualify Motley Rice from representing the City. Our review is for abuse of discretion. United States v. Alfonzo-Reyes, 592 F.3d 280, 293 (1st Cir. 2010). There was no such abuse. …

“As to the City’s appeal, we affirm the dismissal of the City’s state law claim. The court committed no errors of law and its determinations are well supported based on the City’s own pleadings and public records attached to its pleadings. …
“We first address the City’s argument that the district court erred in finding the public nuisance claim was not tolled under Mass. Gen. Laws ch. 260, §12. … The district court was correct in holding that statutory tolling is inapplicable due to the many events before 2021 that at the very least put the City on notice of a ‘probability of wrongdoing’ by the PBMs and the fact that the City ‘had the means to acquire [the] facts’ to bring a timely claim against the PBMs. …
“To its credit, the City does not dispute that it knew of the harms to it from the opioid epidemic long before 2021, as indeed it began pursuing redress for those harms in September 2018 when it filed its lawsuit against opioid manufacturers. … The City asserts that actual knowledge can only be imputed to plaintiffs when they have no substantial doubt at all as to the existence of defendants’ wrongdoing and the resulting claim. The text of the fraudulent concealment statute says no such thing and the Massachusetts Supreme Judicial Court cases interpreting it contain no such requirement. …
“The City’s statutory tolling argument is that it ‘did not know’ that ‘PBMs caused th[e] [opioid epidemic] harm’ such that it was not ‘on notice of its claims’ against these defendants. The pleadings and undisputed public documents properly considered on the motion to dismiss show that the City had ample reason to know of PBM wrongdoing and had ample means to discover the facts to support a claim against PBMs before 2021. …
“We see no need to replicate the district court’s thoughtful analysis and, unless otherwise noted above, we affirm based on its cogent reasoning.”
The City of Boston, et al. v. OptumRx, Inc., et al. (Lawyers Weekly No. 01-041-26) (13 pages) (Lynch, J.) Appealed from a decision by Saris, J., in the U.S. District Court for the District of Massachusetts. Mimi Liu and Frederick C. Baker, with whom Elizabeth Smith, Michael J. Quirk, Motley Rice LLC, Adam Cederbaum, Caesar P. Cardozo, Batool Raza, Christopher C. Naumes, Robert T. Naumes Sr. and Naumes Law Group were on brief, for the plaintiffs-appellants; Keith R. Blackwell, with whom Brian D. Boone, Matthew P. Hooker, Matthew P. McGuire, Andrew Hatchett, Grace Assaye, Alston & Bird LLP, Shamis Beckley, Dane R. Voris and Cooley LLP were on brief, for OptumRx, Inc; OptumInsight, Inc.; OptumInsight Life Sciences, Inc.; UnitedHealth Group Incorporated; Christopher G. Michel, with whom Michael Lyle, Jonathan G. Cooper, Patrick D. Curran, Alexander del Nido and Quinn Emanuel Urquhart & Sullivan were on brief, for Express Scripts, Inc.; Express Scripts Administrators, LLC; Medco Health Solutions; Express Scripts Pharmacy, Inc.; ESI Mail Order Processing, Inc.; ESI Mail Pharmacy Service, Inc. (Docket Nos. 25-1258 and 25-1265) (March 2, 2026).
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