Boston v. OptumRx: Public-Nuisance Claims Against PBMs Are Time-Barred When Public Information Makes Wrongdoing Probable and Discoverable (No “Continuing Nuisance” Without New Tortious Acts)

Precedents Cited

1. Continuing nuisance and the need for new wrongful acts

The court’s continuing-nuisance analysis flowed from Taygeta Corp. v. Varian Assocs., 763 N.E.2d 1053 (Mass. 2002), as applied by the district court in City of Boston v. Express Scripts, Inc., 765 F. Supp. 3d 31 (D. Mass. 2025). The key rule (quoted and adopted in substance on appeal) is that Massachusetts requires:

• “recurring tortious or unlawful conduct” within the limitations period; and
• more than “the continuation of harm caused by previous but terminated tortious or unlawful conduct.”

The First Circuit reinforced that a plaintiff cannot re-label stale conduct as “ongoing” to manufacture timeliness; there must be a sufficiently specific, timely, independently actionable act.

2. Fraudulent concealment tolling: “actual knowledge” includes imputed knowledge where wrongdoing is probable and discoverable

For tolling under Mass. Gen. Laws ch. 260, § 12, the court relied on Massachusetts “actual knowledge” principles articulated in:

• Magliacane v. City of Gardner, 138 N.E.3d 347 (Mass. 2020) (tolling unavailable where the plaintiff has actual knowledge, which is imputed when the plaintiff had means to acquire facts and the probability of wrongdoing was evident);
• Demoulas v. Demoulas Super Mkts., Inc., 677 N.E.2d 159 (Mass. 1997) (imputation where possession of the means to learn facts is equivalent to actual knowledge when wrongdoing is sufficiently evident);
• Lynch v. Signal Fin. Co. of Quincy, 327 N.E.2d 732 (Mass. 1975) (“no concealment” by mere nondisclosure where the plaintiff has full means to detect the fraud);
• Brackett v. Perry, 87 N.E. 903 (Mass. 1909) (full means of detecting fraud under circumstances that put a plaintiff on inquiry is equivalent to actual knowledge).

The City argued for a stricter “no substantial doubt” threshold before knowledge could be imputed. The court rejected that reading as inconsistent with the statute and these cases, and treated the City’s reliance on a footnote in Demoulas v. Demoulas Super Mkts., Inc. as a misread—particularly because Demoulas itself distinguishes scenarios involving fiduciary duties from non-fiduciary concealment disputes.

3. Waiver of arguments raised for the first time on appeal

The court applied First Circuit preservation doctrine from Rockwood v. SKF USA Inc., 687 F.3d 1 (1st Cir. 2012), quoting Sierra Club v. Wagner, 555 F.3d 21 (1st Cir. 2009), to hold the City’s newly minted limitations-period theory waived.

4. Disqualification motions reviewed cautiously; abuse-of-discretion standard

On counsel disqualification, the First Circuit used the abuse-of-discretion standard from United States v. Alfonzo-Reyes, 592 F.3d 280 (1st Cir. 2010), and endorsed the MDL court’s cautionary approach in In re Nat'l Prescription Opiate Litig., 2024 WL 3387288 (N.D. Ohio Mar. 18, 2024), emphasizing that disqualification can be wielded strategically and should be approached “with extreme caution.”

5. Distinguishing non-Massachusetts PBM timeliness decisions

The court acknowledged but distinguished three out-of-circuit decisions relied upon by the City: Alaska v. Express Scripts, Inc., 774 F. Supp. 3d 1150 (D. Alaska 2025); King County v. Express Scripts, Inc., 2025 WL 1082130 (W.D. Wash. Apr. 10, 2025); and Ohio Cnty. Comm'n v. Express Scripts, Inc., 2024 WL 5701504 (N.D.W. Va. Dec. 23, 2024). The First Circuit emphasized that none applied the Massachusetts tolling framework at issue and noted, as to Alaska, a different (“relaxed”) approach to pleading fraud under Rule 9(b).

Legal Reasoning

1. Fraudulent concealment tolling fails when public events make wrongdoing probable and discoverable

The court treated the tolling dispute as turning on whether the City could plausibly claim it lacked “actual knowledge” (including imputed knowledge) of its cause of action until within the limitations period. Even assuming (the court said dubitante) that the City plausibly pleaded other prerequisites for § 12, tolling still failed because the City had ample notice and investigative means well before 2021.

The court grounded this conclusion in a mosaic of public, external signals—many of which the City itself referenced or would reasonably be aware of given its opioid litigation posture:

• The City conceded awareness of opioid harms long before 2021 and had already sued opioid manufacturers in 2018 (City of Boston v. Purdue Pharma L.P.).
• A substantial volume of publicly filed opioid suits named PBMs, including bellwether PBM cases within the federal MDL (In re National Prescription Opiate Litigation, No. 1:17-MD-2804 (N.D. Ohio)).
• A January 26, 2018 letter to Motley Rice flagged PBMs’ alleged centrality—tied to the filing of County of Webb v. Purdue Pharma, L.P. and the introduction of PBMs into MDL litigation—underscoring that public pleadings described PBMs’ role “in detail.”
• The City’s own complaint cited Massachusetts PBM scrutiny, including the 2019 report “Cracking Open the Black Box of [PBMs],” and relied on publicly available reporting about Express Scripts dating back to 2016.

Under Magliacane v. City of Gardner and related Massachusetts authority, these circumstances made the “probability of wrongdoing” sufficiently evident, and the City had the means to discover the claim—making tolling inapplicable.

2. Continuing nuisance requires timely, recurring wrongful conduct—not merely continuing consequences

Echoing Taygeta Corp. v. Varian Assocs., the court agreed that Massachusetts recognizes continuing nuisance when the nuisance-causing conduct itself continues (e.g., ongoing seepage of pollutants). Here, by contrast, the complaint did not identify a timely, specific PBM act that was itself tortious or unlawful. The court underscored that the “most recent actions alleged” were remedial measures, which the court treated as non-actionable for limitations purposes.

3. Procedural discipline: waiver on appeal

The City’s attempt to reframe limitations on appeal—arguing the three-year period did not apply because the nuisance was an “ongoing condition”—was rejected as waived under Rockwood v. SKF USA Inc. and Sierra Club v. Wagner. The court nevertheless addressed the merits briefly and found the argument inconsistent with Taygeta because the City alleged no ongoing harmful condition within the limitations period akin to continuing pollutant seepage.

4. Disqualification: no material disadvantage where information is broadly shared in the MDL

The court affirmed denial of disqualification. Two themes drove the reasoning:

• Caution against strategic disqualification: adopting the MDL court’s warning in In re Nat'l Prescription Opiate Litig..
• No material disadvantage: the district court found that documents produced in earlier investigations were deposited in the MDL repository and accessible to plaintiffs’ counsel generally—undercutting claims that Motley Rice possessed uniquely prejudicial information.

Impact

• Earlier filing pressure for municipal PBM nuisance suits in Massachusetts: Municipalities and public entities in Massachusetts will face a higher bar to invoke § 12 tolling when (as in opioid litigation) there is extensive public reporting, widespread litigation, and MDL proceedings that make the “probability of wrongdoing” evident.
• Clearer line between “continuing harm” and “continuing tort”: The decision reinforces that continuing nuisance is not a doctrine that extends limitations simply because the downstream effects of past conduct persist. Pleadings must identify timely, recurring unlawful conduct.
• Practical consequences for MDL-adjacent litigation: The court’s reliance on public MDL developments and bellwether selections as part of the “notice” landscape signals that sophisticated plaintiffs—especially repeat litigants represented by opioid-specialized counsel—may find it difficult to claim delayed discovery once PBM theories are publicly litigated.
• Stabilizing counsel-disqualification standards in mass tort ecosystems: By endorsing the MDL court’s caution and emphasizing the absence of material disadvantage (especially where discovery is shared through an MDL repository), the opinion may deter disqualification motions aimed at disrupting plaintiffs’ coordination.