Column - An opioid appeal test limits of judicial power in mass torts

The plaintiffs allege that Optum and Express Scripts, which process claims for insurance coverage of prescription medications, colluded with drugmakers to promote opioids, oversupplying communities with addictive medications. A spokesperson for Optum, which is owned by UnitedHealth Group and generated **$154.7 billion** in revenue in 2025, said in a statement that the company “did not contribute to this crisis, and on the contrary has been a leader in fighting opioid abuse.” Express Scripts, which was bought by Cigna for **$54 billion** in 2018 and no longer releases stand-alone revenue, declined comment. In the early days of the opioid litigation, which began in 2017, pharmacy benefit managers were named as defendants in fewer than 100 lawsuits. Polster in court papers later described the companies' business practices as "unusually opaque," which may have made them a less-obvious initial target. In 2024, plaintiffs’ lawyers asked Polster for permission to amend hundreds of complaints to add Optum and Express Scripts as defendants. In part, they pointed to "key information" produced in litigation brought by Jefferson County, Missouri, that they said shed new light on the role of the companies in the opioid crisis. But their request came five years after Polster’s March 16, 2019, deadline for most litigants to make such changes. This is where the Rules of Federal Civil Procedure come into play. Rule 15 says judges should allow parties to amend their lawsuits “when justice so requires.” And Rule 16 says changes are permitted if plaintiffs can demonstrate a “good cause” for their failure to comply with the original schedule. After nearly a decade of litigation and **$50 billion** in settlements, the nationwide opioid litigation brought by local and state governments finally seemed to be winding down. Then the Ohio federal judge overseeing it allowed hundreds of plaintiffs this summer to add two deep-pocketed defendants to their cases. The judge's move has prompted an urgent appeal by the companies, pharmacy benefit managers **Optum Rx** and **Express Scripts**, which argue that the judge made a procedural error by allowing the parties to amend their complaints en masse years after the deadline to do so had passed. The companies, which deny wrongdoing, argue that U.S. District Judge Dan Aaron Polster should have evaluated the requests of all **800 plaintiffs** — ranging from small rural towns like Cherokee, Alabama, to major American cities including Detroit and Cleveland — individually. Defense lawyers from Sullivan & Cromwell; Alston & Bird and Quinn, Emanuel, Urquhart & Sullivan argue that Polster erred by allowing the plaintiffs to add their clients without first conducting a case-by-case analysis. In a court order, the judge said it would require “colossal resources” to look at each case individually, and that doing so would not serve the efficiency goals of an MDL. Instead, he issued a series of rulings addressing common issues, ultimately allowing the **800 amended complaints**. Defense lawyers counter that federal rules don’t allow such a shortcut, and that the judge was required to consider if each plaintiff individually satisfied Rule 15 and Rule 16. Many do not, they argue. For example, they say the plaintiffs and their lawyers had access to the relevant documents about pharmacy benefit managers as early as July 2018, but failed to act on the information. They also note that in 2020, the Sixth Circuit reversed Polster for a similar procedural move in the opioid MDL, rebuking him for allowing two Ohio counties to add untimely claims. “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance,” the panel held. The MDL court “must find efficiencies within the Civil Rules, rather than in violation of them.” Now defense lawyers want the Sixth Circuit again to determine whether Polster crossed the line, and to reinforce its earlier warning that the rules of civil procedure offer no exception for multidistrict litigation. The procedural question prompted a trio of amicus briefs last week in support of the pharmacy benefit managers. The U.S. Chamber of Commerce in its brief warned of potentially “devastating” effects on American businesses and the national economy if MDL judges aren't required to follow the same procedural rules that govern other civil cases. The Chamber also noted that MDLs now account for nearly two-thirds of all private civil litigation at the federal level, writing that they are “the predominant means for suing businesses in federal court today.” Mandamus petitions – where a litigant asks an appeals court to intervene before a case reaches final judgment – are rarely granted. But the pharmacy benefit managers’ protest appears to have piqued the Sixth Circuit’s interest. The appellate court ordered plaintiffs' lawyers, and "invited" Polster, to respond by Sept. 15. The appeal now before the Cincinnati-based 6th U.S. Circuit Court of Appeals highlights a central tension in multidistrict litigation: How much leeway should judges have to deviate from the Federal Rules of Civil Procedure when managing the massive proceedings? If the appeals court finds the judge overstepped, it likely doesn’t mean Optum and Express Scripts would escape the litigation altogether. But it could force plaintiffs to clear additional hurdles before adding the companies to their cases, slowing the litigation and potentially easing settlement pressure on the defendants. The procedural dispute comes after many of the opioid litigation's largest players, including drugmakers, distributors and pharmacy chains, agreed to settlements over their alleged roles in a crisis that has killed more than **800,000 people** since 1999. The pharmacy benefit managers, however, remain in the MDL along with some retail pharmacies and generic drugmakers.

Column - An opioid appeal test limits of judicial power in mass torts

Arguments over Rule 15 and Rule 16

Appeal over late amendments in opioid MDL

Defense pushback and wider MDL implications

What the Sixth Circuit is being asked to decide

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