Boston v. OptumRx: Massachusetts Fraudulent-Concealment Tolling and “Continuing Nuisance” Require More Than Ongoing Harm and Publicly Available Clues Can Impute Actual Knowledge

1. Introduction

In The City of Boston v. OptumRx, Inc. (1st Cir. Mar. 2, 2026), the City of Boston, the Boston Public Health Commission, and the Boston Housing Authority (collectively, “the City”) sued two pharmacy benefit managers (“PBMs”), OptumRx and Express Scripts, alleging a Massachusetts public nuisance theory tied to the opioid epidemic. The City claimed PBMs colluded with opioid manufacturers to misrepresent opioid risks, thereby contributing to harms suffered by the City.

The PBMs removed the case to federal court and moved to dismiss as time-barred under Massachusetts’ three-year limitations period. The City responded primarily with (i) a “continuing nuisance” theory and (ii) tolling based on fraudulent concealment under Mass. Gen. Laws ch. 260, § 12. Separately, the PBMs sought to disqualify the City’s counsel, Motley Rice, based on its prior representations in opioid-related investigations.

The First Circuit affirmed both (a) the dismissal of the City’s state-law nuisance claim as untimely and (b) the denial of the motion to disqualify counsel.

2. Summary of the Opinion

The court held that tolling under Mass. Gen. Laws ch. 260, § 12 was unavailable because, long before 2021, public events and records made the “probability of wrongdoing” sufficiently evident and the City had the means to discover the relevant facts—circumstances Massachusetts law treats as the equivalent of “actual knowledge.” The court also rejected the City’s continuing nuisance theory because Massachusetts requires recurring tortious or unlawful conduct within the limitations period, not merely continuing downstream harms from earlier conduct.

On the cross-appeal, the court found no abuse of discretion in denying disqualification of Motley Rice, emphasizing the MDL court’s caution that disqualification can be used strategically and noting the availability of produced materials in the MDL repository.

3. Analysis

3.1 Precedents Cited

A. Continuing nuisance under Massachusetts law

  • Taygeta Corp. v. Varian Assocs., 763 N.E.2d 1053 (Mass. 2002)
    The First Circuit adopted the district court’s application of Taygeta to distinguish between (i) a nuisance claim based on ongoing, recurring unlawful conduct within the limitations period and (ii) a claim based only on continuing harm from past conduct. The court underscored the Taygeta requirement that a continuing nuisance must be based on “recurring tortious or unlawful conduct” and cannot be “established by the continuation of harm caused by previous but terminated tortious or unlawful conduct.” The City’s complaint lacked a “sufficiently specific recent act” by PBMs that itself was tortious or unlawful.

B. Fraudulent concealment tolling and imputed “actual knowledge”

  • Magliacane v. City of Gardner, 138 N.E.3d 347 (Mass. 2020)
    The opinion relied on Magliacane for the controlling formulation: even where fraudulent concealment is alleged, Massachusetts may impute “actual knowledge” when the plaintiff “had the means to acquire [the] facts” and “the probability of wrongdoing was so evident that possession of the means was equivalent to actual knowledge.” This framework drove the holding that tolling could not extend the City’s filing deadline.
  • Demoulas v. Demoulas Super Mkts., Inc., 677 N.E.2d 159 (Mass. 1997)
    The court used Demoulas (including its footnotes) to reject the City’s proposed “no substantial doubt” test. The First Circuit read Demoulas as reaffirming that, outside fiduciary contexts, tolling does not persist where the plaintiff has full means of detecting the alleged wrongdoing and is on inquiry notice.
  • Lynch v. Signal Fin. Co. of Quincy, 327 N.E.2d 732 (Mass. 1975) and Brackett v. Perry, 87 N.E. 903 (Mass. 1909)
    These cases supplied the classic Massachusetts principle that “mere failure to disclose” is not concealment when the aggrieved party has “full means of detecting the fraud,” and that “full means” under circumstances “which put them upon inquiry, is equivalent to actual knowledge.” The First Circuit treated these doctrines as consistent with Magliacane and decisive against tolling here.

C. Waiver on appeal

  • Rockwood v. SKF USA Inc., 687 F.3d 1 (1st Cir. 2012) and Sierra Club v. Wagner, 555 F.3d 21 (1st Cir. 2009)
    The court held the City waived a newly framed limitations argument raised for the first time on appeal and invoked these cases for the settled First Circuit rule that arguments not raised below are forfeited.

D. Counsel disqualification standards

  • United States v. Alfonzo-Reyes, 592 F.3d 280 (1st Cir. 2010)
    The court applied Alfonzo-Reyes for abuse-of-discretion review and found none.
  • In re Nat'l Prescription Opiate Litig., 2024 WL 3387288 (N.D. Ohio Mar. 18, 2024)
    The First Circuit agreed with the MDL court’s caution that disqualification is a “potent weapon” that can be deployed strategically and found the MDL’s reasoning persuasive in rejecting similar disqualification efforts.

E. Out-of-circuit PBM timeliness decisions distinguished

  • Alaska v. Express Scripts, Inc., 774 F. Supp. 3d 1150 (D. Alaska 2025) (noted as applying a Ninth Circuit “relaxed” Rule 9(b) approach)
  • King County v. Express Scripts, Inc., 2025 WL 1082130 (W.D. Wash. Apr. 10, 2025)
  • Ohio Cnty. Comm'n v. Express Scripts, Inc., 2024 WL 5701504 (N.D.W. Va. Dec. 23, 2024)

The court deemed these decisions distinguishable, principally because they did not apply the Massachusetts tolling and limitations framework governing the City’s claims.

F. Related litigation as notice and “means”

  • In re National Prescription Opiate Litigation, No. 1:17-MD-2804 (N.D. Ohio)
  • County of Webb v. Purdue Pharma, L.P., No. 1:18-OP-45175 (N.D. Ohio Jan. 25, 2018)
  • City of Boston v. Purdue Pharma L.P., No. 1884CV02860 (Mass. Super. Ct. Suffolk Cnty. Sept. 13, 2018)
  • City of Boston v. Express Scripts, Inc., 765 F. Supp. 3d 31 (D. Mass. 2025)

The First Circuit treated the spread of opioid litigation against PBMs, the MDL’s inclusion of PBMs, and public filings (including a letter to the City’s counsel referencing PBMs’ role and directing counsel to public pleadings) as powerful indicators that the City had the means to discover a claim earlier than it filed.

3.2 Legal Reasoning

A. Fraudulent concealment tolling failed because “means” + evident probability = imputed actual knowledge

The First Circuit accepted (for purposes of decision) that the City might have plausibly alleged the “prerequisites” of fraudulent concealment, but held tolling still fails under Massachusetts’ imputed-knowledge doctrine. The key move was doctrinal: the City argued tolling persists until it has near-certainty (no “substantial doubt”) about PBM wrongdoing. The court rejected this as inconsistent with Massachusetts precedent.

Applying Magliacane v. City of Gardner and its antecedents, the court emphasized that tolling does not protect a plaintiff who had: (1) the means to acquire the relevant facts, and (2) surrounding circumstances making wrongdoing sufficiently evident to trigger inquiry.

On the pleadings and public records, the court found multiple pre-2021 indicators that satisfied those conditions, including: widespread public litigation naming PBMs; the City’s knowledge of the opioid crisis and its own 2018 manufacturer suit; the existence and visibility of the MDL (including PBM defendants by 2018); public investigative activity and reporting; and the record evidence that the City’s counsel had been directly alerted to PBMs’ alleged role via public MDL materials. In short, the court treated the City’s claimed lack of knowledge as implausible under Massachusetts’ objective “means and probability” approach.

The court also noted that the same reasons disposing of the state tolling argument “dispose of the Federal Rule of Civil Procedure 9(b) issue,” signaling that—whether framed as pleading fraud with particularity or as tolling—the City could not overcome the objective notice/means problem.

B. Continuing nuisance required timely unlawful acts, not merely ongoing consequences

Massachusetts “continuing nuisance” doctrine, as applied through Taygeta Corp. v. Varian Assocs., requires that the nuisance be sustained by ongoing, recurring tortious or unlawful conduct within the limitations period. The First Circuit agreed with the district court that the City’s complaint did not identify a timely, tortious PBM act; it instead offered conclusory “ongoing” labels and pointed to “remedial measures” as the most recent conduct—insufficient to plead a continuing nuisance.

The First Circuit also rejected (and deemed waived) a new appellate attempt to recharacterize the claim as involving an “ongoing condition that is of itself harmful.” Even on the merits, the court found the case unlike Taygeta, where “continuing seepage of pollutants” was still occurring within the limitations period.

C. Disqualification denied: no abuse of discretion and no material disadvantage

On OptumRx’s cross-appeal, the First Circuit held the district court acted within its discretion in denying disqualification. The court stressed: (i) disqualification motions require “extreme caution” because they can be used strategically (adopting the MDL court’s framing in In re Nat'l Prescription Opiate Litig.), and (ii) any informational advantage was undercut by the fact that produced investigation documents had been deposited in the MDL repository and were available to all plaintiffs’ counsel. The court concluded OptumRx could not show disadvantage, “much less a material one.”

3.3 Impact

This decision materially tightens (or at least clearly applies) Massachusetts timeliness constraints in opioid-related municipal litigation against PBMs:

  • Fraudulent-concealment tolling is narrow in practice for sophisticated public plaintiffs. Where public reporting, investigations, MDL proceedings, and widespread copycat litigation exist, Massachusetts courts may impute “actual knowledge” even if the plaintiff claims it lacked certainty about causation or wrongdoing.
  • “Continuing nuisance” is not a backdoor to revive old claims. Plaintiffs must plead specific, timely unlawful acts—not just ongoing public-health costs or lingering effects of an earlier scheme.
  • Opioid MDL activity can function as constructive notice. The court treated the public posture of the MDL (including the PBMs’ presence and bellwether designations) as part of the environment making wrongdoing “so evident” that reasonable diligence would have uncovered it.
  • Disqualification efforts face skepticism when framed as strategic and when discovery parity exists. The MDL repository’s role as an equalizing mechanism was important to defeating claims of material disadvantage.

Practically, Massachusetts governmental entities (and likely other plaintiffs) bringing PBM nuisance theories should expect early, document-heavy motions to dismiss focused on public timelines: when the opioid crisis was known, when PBMs were sued elsewhere, when the MDL included PBMs, and what public materials plaintiffs or their counsel received or could access.

4. Complex Concepts Simplified

Statute of limitations
The legal deadline for filing a lawsuit. Here, the relevant Massachusetts period was three years.
Fraudulent concealment tolling (Mass. Gen. Laws ch. 260, § 12)
A rule that can stop the limitations clock while a defendant hides the existence of the claim. But Massachusetts will not toll if the plaintiff effectively had “actual knowledge”—including when the plaintiff had the means to learn the facts and the likelihood of wrongdoing was obvious enough to require investigation.
“Actual knowledge” by imputation
Not literal certainty. Under cases like Magliacane v. City of Gardner, knowledge can be attributed when public facts and accessible materials make wrongdoing sufficiently apparent and discoverable with reasonable diligence.
Continuing nuisance
A nuisance that persists because the defendant keeps committing unlawful acts within the limitations period (e.g., ongoing pollution seepage in Taygeta Corp. v. Varian Assocs.), not merely because harmful effects continue.
MDL (Multi-District Litigation)
A federal procedure that consolidates many similar cases for pretrial proceedings. The opioid MDL served here as a public source of pleadings, developments, and discovery repositories relevant to notice and diligence.
Disqualification of counsel
A remedy removing a party’s lawyer due to conflicts or unfair advantage. Courts treat it cautiously because it can be used tactically to disrupt litigation.

5. Conclusion

The First Circuit’s decision cements two practical limitations on Massachusetts public nuisance suits in complex, widely publicized mass-tort contexts: (1) fraudulent-concealment tolling will not rescue late-filed claims where public litigation and investigative materials made the “probability of wrongdoing” evident and accessible, and (2) “continuing nuisance” requires timely recurring unlawful conduct—not simply the continuing burden of an entrenched public-health crisis. Alongside, the court’s refusal to disqualify counsel signals continued judicial skepticism of disqualification motions absent a concrete, material litigation disadvantage.