As Trial Nears, Drugmaker Loses Bid to Toss Claims in Opioid Case

CLEVELAND (CN) - With a major trial to test prescription opioid manufacturers’ liability set to begin next month, a federal judge refused Monday to throw out the public nuisance claims of two Ohio counties impacted by the national crisis.

U.S. District Judge Dan Polster has recently made several rulings in the national prescription opiate litigation that has found a home in the Northern District of Ohio. His opinion and order on Monday related to the cases of Summit and Cuyahoga counties against lead defendant Purdue Pharma. They are just two of the hundreds of cases that Polster is overseeing.

Purdue Pharma argued that the court should throw out the counties’ claims of public nuisance before October’s trial in Cleveland. Purdue, which makes the opiate OxyContin, has become a reluctant poster child for a national crisis. It faces accusations that it knew the prescription opioids it made were addictive but for years downplayed the risk and marketed them as safe to increase sales.

In a brief filed in July, the company said the counties’ claims against it were overbroad. It argued that Polster should grant its motion for summary judgment, in part because there is no evidence it had “exercised any control over illegal drugs.”

Polster denied the motion for summary judgment on the plaintiffs’ public nuisance claims in Monday’s eight-page ruling.

“Plaintiffs do not allege the claimed nuisance is the consequence of use or misuse of the opioid medication itself, but rather is the result of defendants’ business conduct,” the judge wrote.

The judge ruled that the counties had submitted evidence to show that the opioid makers had disrupted public health and safety. He noted the local governments had cited data and reports pointing to an increase in opioid deaths over the past decade.

They also presented evidence of a rise in admissions to hospital and emergency rooms for overdoses. Naloxone is a medication used to treat opioid overdoses, and its rates of use in Summit County are among the highest in the state.

The plaintiffs further cited evidence of how opioids had decimated families, Polster wrote. That impact was felt by the children who had ended up in foster care after their parents had overdosed or ended up incarcerated. The counties also made clear that drug-related arrests and prosecutions had affected their communities, according to the ruling.

Polster pointed to the testimony of Dr. Russell Portenoy. He was “one of the key opinion leaders funded by the manufacturers,” who later said that the companies had knowingly misrepresented the drugs’ safety to boost sales. The companies’ sales representatives had played down the risks, the counties showed in evidence presented to the court.

“Other evidence of intent includes testimony and documents indicating Purdue falsely represented OxyContin as weaker than morphine (even though it was twice as potent) for the purpose of neutralizing any impression that the drug was dangerous and should be reserved only for severe pain,” Polster wrote. (Emphasis in original.)

Last week, 14 attorneys general filed amicus briefs with the Sixth Circuit in support of Ohio's bid to postpone or cancel the trial in favor of a state-led court action.

“What some suggested was an outlying position a week ago is anything but and has gained strong support. That’s what happens when people hear the facts,” Ohio Attorney General Dave Yost said in prepared remarks Monday. “It is good to see my peers, who also represent their entire states, recognize that the cases on behalf of all Ohioans are the way to go.”

Last week, Polster also refused to grant summary judgment to defendants Teva, Actavis, Janssen Pharmaceuticals, Johnson & Johnson, and Walgreens.

The plaintiffs’ executive committee attorneys Paul Farrell, Paul Hanly and Joseph Rice said in a joint statement that Polster's order strengthen the counties' claims.

“This clears the runway for the communities we represent to demonstrate, with evidence, exactly how opioid manufacturers and distributors created a massive public health epidemic that endangered our entire country," the attorneys said. "Today's order gives strength to Americans who have been fighting tirelessly for accountability and the resources they need to recover from the opioid epidemic.”

Purdue did not immediately respond Monday to requests for comment.

The trial is set to begin Oct. 21.

Last month, an Oklahoma judge awarded the state $572 million in the first opioid crisis lawsuit to reach a verdict. The judge found that the state successfully proved Johnson & Johnson created a public nuisance by aggressively pushing the drugs to doctors.

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