New Hampshire in 2015 became the first state to subpoena opioid manufacturer Purdue Pharma for documents detailing its allegedly deceptive marketing of the highly addictive painkiller OxyContin.
Years of procedural legal battles in Merrimack Superior Court, the state Supreme Court and several federal courts have bogged down the resulting lawsuit brought by the Attorney General’s office. But a sign of what’s to come for New Hampshire — and the hundreds of cities and towns nationwide that have filed similar suits — could soon come from Oklahoma, where a case brought by that state’s Attorney General could set a crucial precedent.
“It’s very important,” New Hampshire Senior Assistant Attorney General Jim Boffetti said of the Oklahoma case, which is scheduled to be the first lawsuit of its kind against Purdue to move to trial, with a starting date planned for May.
“There’s a lot of moving parts going on right now with these hundreds and hundreds of lawsuits,” Boffetti added. “Our intention is to try and get (ours) to trial as soon as we can get through all the discovery. But as you can imagine, there are millions and millions of documents produced by both sides.”
With similar legal concepts and evidence, the Oklahoma trial could presage many of the arguments a jury might be presented with in New Hampshire or in a federal court in Ohio, where the many suits brought by cities and towns around the country have been consolidated into a single federal docket. If the drug companies in Oklahoma offer a settlement, the proposal could precipitate a national settlement, some legal experts said.
At a minimum, the Oklahoma trial would for the first time give the press and the American public full access to evidence and arguments aimed at showing that drug companies flooded local markets with opioid painkillers for more than a decade while knowing that the pills were highly addictive.
In the case, which was filed in 2017, attorneys representing Oklahoma will present evidence and expert testimony to support the state’s claim that OxyContin, Vicodin, Percocet and other prescription pain medicines that drugmakers falsely claimed were safe led to the deaths of thousands of Oklahomans.
The state also will argue that the drug companies’ “deceptive and misleading” marketing campaigns caused “a devastating public health crisis” in the state, putting “an immense financial burden on Oklahoma, its businesses, consumers, communities and citizens,” according to the original petition in the case.
In previous state and federal lawsuits, Purdue and other opioid manufacturers have noted that the drugs they produced were approved by the U.S. Food and Drug Administration and argued that they had a legitimate purpose. They also maintained that the doctors and patients who misused the pills should be held accountable for the addiction and overdoses that resulted.
Nearly 218,000 people died in the United States from overdoses related to prescription opioids between 1999 and 2017, according to the Centers for Disease Control and Prevention. And the opioid addiction and overdose epidemic of the last decade has cost the nation an estimated $79 billion a year.
“The Oklahoma trial will pull the cover off the pharmaceutical companies’ fraudulent and deceptive marketing practices,” Michael Burrage, one of the state’s attorneys, said in an interview. “The case will show that it was all about the money. That’s all they cared about, was the money.”
Purdue said in a statement, “While Purdue Pharma’s opioid medicines account for less than 2 percent of total prescriptions, we will continue to work collaboratively with the state toward bringing meaningful solutions forward to address this public health challenge.”
Since the presiding judge in the Oklahoma case ruled that television cameras may be used in the courtroom, every detail of what promises to be a dramatic trial could be broadcast to the American public, potentially affecting the outcome of any future opioid trials.
“These companies have waged a fraudulent, decadelong marketing campaign to profit from the anguish of thousands of Oklahomans,” Republican Oklahoma Attorney General Mike Hunter said in a 2017 press announcement after the case was filed.
“Allowing cameras in the courtroom will give Oklahomans across the state and individuals from across the country a firsthand account of the proceedings,” Hunter wrote in a 2018 press statement. “It will also allow individuals to see how these companies maliciously deceived the nation while creating the deadliest man-made epidemic in United States history.”
The Oklahoma lawsuit seeks to hold Purdue and three other opioid makers, Allergan, Cephalon and Janssen Pharmaceuticals, responsible for economic damages to the state and its residents stemming from the opioid addiction and overdose crisis.
The New Hampshire Attorney General’s office also has sued Janssen.
Oklahoma was not the first state to sue opioid makers. West Virginia, Kentucky and the federal government sued opioid makers in the early 2000s.
In 2007, Purdue executives pleaded guilty in the federal case to falsely advertising OxyContin as “less addictive” and “less subject to abuse and diversion” than other pain medications. The company agreed to pay $600 million in criminal and civil fines to the federal government and $20 million to 26 states and the District of Columbia. New Hampshire did not join in that settlement, Boffetti said.
“What we’ve found is that they didn’t stop their behavior, but in fact continued to misrepresent their behavior,” he said. “They purposefully underplayed the addictive nature of these drugs and they downplayed the risks of taking these drugs ... in some cases affirmatively telling doctors and patients that these drugs were safe and non-addictive.”
In the latest round of litigation, nearly all states have filed lawsuits against drugmakers, distributors and retailers. Most of the cases do not have set court dates.
In the federal opioid case slated for trial in October, U.S. Northern District of Ohio Judge Dan Polster has said he intends to push for a swift settlement. The deal would include money to help treat the more than 2 million people addicted to opioids, and it also would put restrictions on pharmaceutical companies, aimed at preventing more people from becoming addicted.
Already, doctors are prescribing fewer pain pills, reducing national opioid consumption by more than 20 percent since 2011, according to IQVIA, a company that tracks retail sales of prescription drugs. And last year, Purdue said it would stop marketing its opioid painkillers directly to doctors.
Those actions likely stem at least in part from the media attention the litigation already has drawn, combined with the threat of a monetary settlement in the cases, wrote Yale Law School professor Abbe Gluck in a 2018 analysis of the cases.
An Oklahoma trial, particularly if televised, could apply even more pressure on opioid makers. “Oklahoma becomes essentially a bellwether trial — as one case goes, so too would you expect the others to go,” said Andrew Pollis, a litigation expert at Case Western Reserve University Law School in Ohio.
Oklahoma attorney Burrage said the trial is intended, in part, to shed light on evidence about the drugmakers’ marketing schemes that otherwise would remain hidden under a national settlement.
The New Hampshire Attorney General’s office has agreed to a protective order for evidence turned over by Purdue during discovery. Boffetti said he would have liked all the information to be public, but his office wanted to see the case move forward, and litigating the confidentiality of every piece of evidence would have been a glacially slow process.
In January, a judge made public a lawsuit that Massachusetts Attorney General Maura Healey, a Democrat, filed in 2018 against Purdue and its owners.
In the newly released document, Healey alleges that the Sackler family, which owns Purdue, knew that their product was highly addictive and yet directed salespeople to pressure doctors to prescribe higher and higher doses of opioid pain medicines. The petition also alleges that the family had planned to find a way to profit from the treatment of the legions of patients who would become addicted to their drugs.
A statement from Purdue called the release of the Massachusetts complaint an attempt to “single out Purdue, blame it for the entire opioid crisis, and try the case in the court of public opinion rather than the justice system.”
Although the Sackler family has sought to remove itself from the national opioid litigation, a judge ruled in the Oklahoma case that the state’s attorneys could interview family members.
Union Leader staff writer Todd Feathers and Stateline contributed to this report.