In a motion to dismiss an explosive lawsuit brought by the Commonwealth of Massachusetts, OxyContin-maker Purdue Pharma argues that it is not responsible for the current epidemic of opioid overdoses as the Commonwealth alleges—even if the people now overdosing were initially patients who became addicted to opioids while using its highly addictive painkiller.
Purdue, which forcefully marketed OxyContin after its 1995 FDA approval, notes that opioid overdose deaths are currently driven by use of illicit opioids, namely heroin and fentanyl. Those overdoses, regardless of whether they stem from an addiction formed using OxyContin, are “far removed from a physician prescribing a Purdue medication,” the company argues. The motion goes on:
Those alleged harms happen because of numerous additional intervening acts, including criminal acts by third parties such as drug dealers who sold deadly heroin and fentanyl in the Commonwealth. These are not Purdue’s acts and any connection between Purdue and these illegal acts is too remote to be actionable.
According to data from the Centers for Disease Control and Prevention, deaths from opioid pain killers rose in parallel with the amount (in kilograms) of opioids sold in the US—both quadrupling within the time frame of 1999 and 2010. While opioid prescriptions leveled off and began declining in 2012, deaths from the extremely potent opioid fentanyl began spiking nationwide in 2013. Likewise, deaths from heroin also didn’t begin significant upticks until around 2011.
In 2017, synthetic narcotics (mainly fentanyl) accounted for 28,466 of the more than 70,200 overdose deaths in the country (around 40 percent), while heroin alone accounted for 15,482 (22 percent). Meanwhile, prescription opioids, including OxyContin, jumped five-fold between 1999 and 2017, causing 17,029 deaths that year (24 percent). Purdue, however, argues that OxyContin prescriptions account for a small percentage of prescription opioids nationwide, currently less than 2 percent and never more than 4 percent.
Purdue further argues that even if the Commonwealth’s allegations that the pharmaceutical company spurred the epidemic could legally be proven, the Commonwealth’s statutes of limitations (three to four years for applicable claims) would, in part, clear Purdue of wrongdoing. The company also alleges that it deceptively marketed its addictive pain killer were already addressed in a 2007 consent judgement, which resolved claims from 27 state attorneys general, including Massachusetts’.
Overall, Purdue blasted the Commonwealth’s complaint, calling it “hyperbole-filled” and “oversimplified scapegoating based on a distorted account of the facts unsupported by applicable law.” It emphasized that no one company could be held responsible for the devastating toll of overdose deaths, highlighting the fact that the Massachusetts Department of Public Health had itself concluded that “’[n]o single substance or health care practice is solely responsible for the current opioid crisis. Rather, it’s a complex issue with a number of contributing factors.’”
The Commonwealth’s complaint is just one of roughly 2,000 that Purdue faces for its alleged role in the opioid epidemic. But its public release in January made headlines for being the first to directly tie the secretive Sackler family to the company’s alleged misdeeds. The Commonwealth accused the family, which owns Purdue, of directing company efforts to ruthlessly push the drugs on patients despite knowing the deadly risks. In particular, Richard Sackler—son of Raymond Sackler, who bought the initial pharmaceutical company Purdue Frederick in 1952 with his brother Mortimer—was painted as callous and greed-driven. In an email quoted in the complaint, Richard suggested branding patients who became addicted to the company’s highly-addictive opioid as “reckless criminals.”
The motion to dismiss Massachusetts’ complaint is just from Purdue; the other defendants in the case, including Richard Sackler, have longer to file motions. Still, Purdue’s motion attempted to defend Sackler to some extent. It noted that the Commonwealth’s complaint suggested that Sackler had responded to a report of 59 OxyContin-linked deaths in a single state by writing, “This is not too bad. It could have been far worse.” Purdue alleges that “Dr. Sackler was merely commenting about the nature of recent press coverage,” not the deaths specifically.
When this Court looks beyond the Commonwealth’s inflammatory language and examines the legal sufficiency of the Commonwealth’s causes of action under the Massachusetts Consumer Protection Act and for public nuisance, it will be apparent that both have significant legal defects that require dismissal.
Massachusetts is reportedly planning to oppose Purdue’s motion.
Meanwhile, Reuters first reported this week that Purdue is considering filing for bankruptcy to stymie liabilities from mounting lawsuits, such as the complaint from Massachusetts.