Judge Allows Asthma Wrongful Death Suit to Continue Against PBM, Pharmacy

A federal judge from the Eastern District of Wisconsin has denied a motion to dismiss in a wrongful death case that has drawn national attention.

Just the Facts

The facts themselves are undoubtedly tragic. Twenty-two-year-old Cole Schmidtknecht suffered from asthma all his life. The asthma was being treated with Advair Diskus, prescribed by his doctor. His medical insurer, UnitedHealthcare, had previously covered the medication requiring Schmidtknecht to pay less than $70 out of pocket.

On January 10, 2024, Schmidtknecht went to his local Walgreens pharmacy to refill his prescription. On this occasion, he was told that his insurer no longer covered the Advair Diskus inhaler and that it would cost him over $500 for the prescription. He had not received any advance notice of this formulary change, and the Walgreens staff reportedly did not assist in identifying a more affordable alternative. Schmidtknecht could not afford the prescription, so he left the pharmacy without his inhaler.

Five days later he suffered a severe asthma attack. As his roommate was driving him to the hospital, Schmidtknecht lost unconsciousness. By the time they arrived at the emergency department, he was pulseless and cyanotic. He was placed on a ventilator in the intensive care unit but nothing could be done to revive him. His parents agreed to take him off life support and he died on January 21, 2024.

Schmidtknecht’s parents brought a wrongful death suit against Optum Rx, the pharmacy benefit manager (PBM) subsidiary of UnitedHealth Group, and Walgreens. They alleged that Optum Rx’s decision to discontinue coverage of Advair Diskus was financially motivated, influenced by rebates from manufacturers of competing companies, rather than based on clinical considerations. They also noted that state law required Optum Rx to give Schmidtknecht notice that it would no longer be covering the inhaler. Optum Rx made a motion to dismiss the case.

Court’s Decision

The federal court judge rejected Optum Rx’s attempt to have the case dismissed based on its claim that state law would not apply in this case. “The paths may be narrow,” wrote the judge in the decision, “but at the motion to dismiss stage the court is concerned only with whether there is any plausible way that the plaintiffs could sustain their claim. A wrongful death claim based on the theory that a PBM should have provided an insured notice of a change in prescription coverage is not necessarily preempted by ERISA.” The judge refused to dismiss the case, and it will continue to proceed.

Reference

Shanon Schmidtknecht, et al, v Optum Rx, Inc., et al. No 25-CV-93. United States District Court Eastern District of Wisconsin; 2025. https://www.documentcloud.org/documents/26031636-schmidtknecht-v-optumrx-and-walgreens-order-on-motion-to-dismiss/?q=preempted+by&mode=document#document/p17