MADISON – Purdue Pharma says a recent decision to dismiss a North Dakota case shows a newly filed lawsuit by West Virginia and other states is flawed.
West Virginia Attorney General Patrick Morrisey and the AGs from four other states announced lawsuits May 16 against the drugmaker.
“Purdue Pharma vigorously denies the allegations in the lawsuits filed today and will continue to defend itself against these misleading attacks,” the company said in a May 16 statement. “These complaints are part of a continuing effort to try these cases in the court of public opinion rather than the justice system.
“The states cannot link the conduct alleged to the harm described, and so they have invented stunningly overbroad legal theories, which if adopted by courts, will undermine the bedrock legal principle of causation.”
The latest lawsuit claims Purdue Pharma and former CEO Richard Sackler, M.D., violated the state’s Consumer Credit and Protection Act and created a common law nuisance.
"This sends a very clear message," Morrisey said when announcing the latest lawsuit. "Enough is enough. The opioid epidemic knows no boundaries and our states won’t go down quietly."
But, one state did go down.
Days before West Virginia’s suit was filed, a North Dakota judge tossed the state attorney general's claims against Purdue Pharma that blame it for the opioid crisis.
North Dakota Attorney General Wayne Stenehjem said he will appeal Burleigh County District Court Judge James Hill's May 10 order that tossed the state's.
In its nearly year-old lawsuit, North Dakota claimed Purdue misrepresented and trivialized addiction risks associated with prolonged opioid use and dismissed addiction symptoms that did turn up as "pseudoaddiction." The state sought to hold Purdue liable for opioid overuse and addiction in North Dakota.
In his 27-page order, Hill said the opioid dealer cannot control how its customers use their drugs.
"Purdue cannot control how doctors prescribe its products, and it certainly cannot control how individual patients use and respond to its products, regardless of any warning or instruction Purdue may give," Hill wrote in his order.
Hill handed down his order on Purdue's motion for dismiss, in which the company argued in part that the state was trying to promote liability on "lawful promotion" of drugs that have been FDA-approved. Such claims are pre-empted under federal law, according to Purdue's motion, which also argued North Dakota's public nuisance laws don't cover the sale of goods.
Purdue says that North Dakota victory is significant and has “potential far-reaching ramifications for both the state lawsuits filed … and for the claims pending in the multi-district litigation (MDL).”
“The decision by the North Dakota Court shines a bright spotlight on the flaws in the state cases filed,” the company said in a statement. “The North Dakota court noted that the states’ theory of the case depends on an ‘extremely attenuated, multi-step, and remote causal chain’ that fails to account for the numerous independent actors who stand between Purdue’s alleged conduct and the alleged harm.
“The court cut through the allegations that Purdue caused the opioid crisis, noting that the state ‘completely fails’ to allege how Purdue’s marketing actually caused the financial damage claimed by the state.”
The company says it expects the newest cases will be dismissed on grounds of federal exemption.
“As explained by the court in North Dakota, the FDA specifically disagreed with the states’ contention that Purdue made false and misleading statements about certain benefits of OxyContin,” Purdue said in the statement. “The states lawyers are attempting to substitute their opinions for the expert medical judgments made by the FDA, and if allowed to stand, patients will suffer.
“In the lawsuits announced today, the states make many of the same legal claims that were dismissed in North Dakota. And, once again, these complaints disregard basic facts about Purdue’s prescription opioid medications.”
West Virginia’s lawsuit, which was filed in Boone Circuit Court, is the second lawsuit against Purdue Pharma filed by the state. The first was filed by former Attorney General Darrell McGraw. The first lawsuit filed against Purdue was filed back in 2001 and resulted in a $10 million settlement in 2004.
"Purdue didn’t change its ways," Morrisey said. "West Virginia has strong claims, and we will pursue them vigorously.
"The state will be much more aggressive this time around. Today’s lawsuit is the product of many years of painstaking investigation. This has been a good team effort.
"Nothing can truly compensate West Virginia for all the death and destruction we’ve seen. We’re going to do our best to allay the concerns people have to provide adequate treatment for those victimized by the epidemic. We need to do more for this state. I’m committed to doing anything possible.
"The health and safety of West Virginia residents, including those who use, have used, or will use opioids, as well as those affected by users of opioids, is a matter of great public interest and of legitimate concern to the State," the complaint states. "West Virginians have a right to be free from conduct that endangers their health and safety and that interferes with the commercial marketplace."
The newest case has been assigned to Circuit Judge William Thompson.
Boone Circuit Court case number 19-C-62