(This post was written by whistleblower attorney Shelby Serig.)
Purdue Pharma currently faces over 1,600 lawsuits related to its manufacture and marketing of opioid drugs, notably including OxyContin. State and local governments have sued Purdue for deceptively marketing OxyContin and downplaying its addictive qualities. Purdue’s actions allegedly ignited the opioid epidemic, which has depleted public programs that provide health care, emergency response, law enforcement, corrections and foster care to citizens.
North Dakota was one of many states that brought claims against Purdue to recover losses associated with the proliferation of opioids. While it seemed for a time that claims brought against drug manufacturers were ironclad, a recent ruling in North Dakota, if it stands, may hinder states’ efforts to recover such funds in the future. The North Dakota ruling, which was entered on May 10, 2019, by Judge James S. Hill, marks the first occasion in which a court has entirely dismissed a state’s claims against an opioid manufacturer. A prior opinion in Delaware was limited to the dismissal of the Delaware Attorney General’s public nuisance claims.
The North Dakota lawsuit was filed last year by North Dakota’s Attorney General Wayne Stenehjem. In it, North Dakota claimed that Purdue caused the opioid epidemic through “an aggressive and successful marketing campaign designed to persuade prescribers and patients that opioids can and should be used for chronic pain.”
Doctors began to frequently prescribe opioids based upon Purdue’s representations that the pills were safe and non-addictive.
North Dakota further claimed that Purdue targeted vulnerable patients, such as the elderly and veterans, while downplaying the risk of addiction. According to the lawsuit, doctors began to frequently prescribe opioids based upon Purdue’s representations that the pills were safe and non-addictive.
In the North Dakota matter, the State alleged that Purdue should have included, either on its labels or in its marketing materials, a more extensive warning of the risks of opioid medication. North Dakota alleged that state law required warnings that exceeded those required by the FDA. The court found that Purdue’s labeling and marketing of OxyContin was consistent with the FDA’s requirements, which were controlling. Therefore, North Dakota’s claims that Purdue failed to comply with state laws pertaining to labeling and warnings were effectively pre-empted by federal regulations.
North Dakota also argued that Purdue’s marketing strategy (most of which was implemented in the 1990s) caused the current opioid crisis. The court found that the causal relationship between the marketing campaign and the current crisis was too remote to survive. Furthermore, the court dismissed the State’s nuisance claim because it arose from the “overprescribing and sale” of opioids, yet Purdue neither prescribed nor sold the drugs to patients.
While the court’s dismissal of North Dakota’s suit against Purdue is concerning, by no means does it sound the death knell for opioid litigation throughout the U.S.
First, it is important to note that Purdue is a manufacturer of opioids. The claims brought against Purdue largely stem from the manner in which the company marketed the drugs. However, many opioid-related lawsuits have not been brought against manufacturers, but rather against entities that distribute or dispense opioids. The North Dakota ruling will have little effect on cases brought against distributors.
It is also important to note that the North Dakota court was tasked with addressing Purdue’s motion to dismiss. However, the court decided to apply a summary judgment standard. Said standard is more difficult to overcome in the early stages of a case, when discovery is not yet complete. Arguably, the court committed reversible error when it applied this heightened standard.
Attorney General Stenehjem has announced plans to appeal the decision.
“We disagree with the Court’s interpretation of the state’s claims and applicable law in numerous key areas,” he said. “I am confident that the State has strong claims against these defendants, whose unconscionable actions demand they be held accountable, and there are well-reasoned arguments that support our position.” Clearly, the progress of the appeal will be monitored nationwide, as the outcome could impact future opioid litigation.
Notably, the recent North Dakota ruling has not stopped (or even slowed) the tide of opioid-related suits. Just days after the North Dakota ruling, six additional states – Pennsylvania, Iowa, Kansas, Maryland, West Virginia and Wisconsin – sued Purdue for its deceptive marketing practices. In total, 45 states have sued Purdue, alleging deceptive marketing of OxyContin.