PIKEVILLE, Ky. — A Kentucky judge said Friday he would rule as soon as next week on a request by STAT to unseal documents related to allegedly illegal marketing of the pain pill OxyContin and what a top executive of the drug’s manufacturer knew about it.
Pike County Circuit Judge Steven Combs made the comment during an hour-long hearing on STAT’s motion to unseal records that were filed as part of a lawsuit by the state of Kentucky against OxyContin maker Purdue Pharma. In December, the lawsuit was settled by Purdue paying the state $24 million.
Combs asked no questions as the lawyers for STAT and Purdue presented their arguments. He indicated that if he were to rule to unseal the records, he would delay any release to give Purdue an opportunity to appeal.
Purdue has faced hundreds of lawsuits and numerous government investigations over its aggressive promotion of OxyContin, which has been blamed for helping spawn a national opioid abuse crisis. In 2007, three corporate executives and an affiliated company pleaded guilty to fraudulently marketing the drug as less addictive than other pain medications and paid $634 million in fines.
Despite the years of litigation, Connecticut-based Purdue has successfully kept millions of company records out of view through judicial secrecy orders or settlement agreements mandating their destruction. In the Kentucky case, 17 million pages of documents were produced during the litigation. As part of the settlement agreement, the Kentucky attorney general destroyed its copies of documents provided by Purdue.
Some key documents, however, were filed under seal in Pike Circuit Court in Pikeville, Ky., and may shed new light on the marketing of OxyContin, including what the private company’s owners knew about how addictive the drug was and whether they downplayed those risks.
Among the documents is a deposition of Dr. Richard Sackler, a Purdue board member and former company president who is a member of the family that controls the closely held company. The deposition, taken last year in Kentucky, is believed to be the only time a member of the Sackler family has been questioned under oath about the marketing of OxyContin and the addictive properties of the opioid pain reliever.
Both sides in the Kentucky case made other filings under seal. Some included exhibits of evidence in the case. STAT requested that all records filed under seal be released to the public.
In court Friday, Purdue’s lawyers argued that to release the records would run counter to Kentucky law and also be unfair. The documents were produced as part of a so-called protective order that is common in complex legal disputes. It allowed the state and Purdue to exchange millions of records confidentially and quickly, Purdue’s lawyers said.
Purdue lawyer Trevor Wells said to rule in favor of STAT would mark the “death knell” of discovery agreements like the one in the Kentucky case and turn the discovery process into a “bloodsport” with constant disputes that would grind state courts to a halt.
Jeremy Rogers, a lawyer for STAT, countered that the law in Kentucky was simple: Records filed with a court are presumptively open to the public.
“Pay no attention to the records behind the curtain — that is Purdue’s argument here,” Rogers told the judge. He said Purdue had failed to provide any valid reason for why records that are part of the court file should be sealed. He emphasized that STAT was seeking only records filed with the court and not millions of others that were exchanged between the parties during discovery.
“A court should not seal from the public court records of any kind just because one party doesn’t want them public,” Rogers said.
Purdue also argued against the release of the Sackler deposition, saying it played no role in how the settlement of the lawsuit. In fact, Purdue said it was unaware the deposition had been filed with the court until STAT filed a motion to unseal it.
Rogers, however, said the state of Kentucky used the deposition to argue its position in a court filing in the lawsuit and that the document was not “dumped like a piece of coal in the record.”
STAT also argued in its motion to unseal the documents that there is a substantial public interest in the case, citing the epidemic of drug addiction and related crime stemming from the abuse of OxyContin in Kentucky and other states. STAT requested the court make the documents available immediately.
Kentucky Attorney General Andy Beshear, in a filing with the court this week, said the state of Kentucky would take no position on the release of the documents.
The aggressive and illegal marketing of OxyContin by Purdue executives following its US approval in 1995 has been cited by drug abuse experts as a key factor in the explosion in opioid painkiller abuse and a resulting surge in overdose deaths. Fatal overdoses from prescription painkillers quadrupled from 1999 to 2013, when they killed more than 16,000 people in the United States.
The federal Centers for Disease Control and Prevention has labeled the spike a “public health epidemic.” Congress and state governments are now scrambling to fight an expanding crisis as the opioid scourge spreads from drugs like OxyContin to heroin and fentanyl.
Eastern Kentucky was hit particularly hard by OxyContin addiction. In Pike County, a rural, coal mining center where Friday’s hearing was conducted, local officials said the rise of OxyContin abuse was accompanied by a wave of crime from addicts desperate for money to feed their habits. A survey of area residents conducted on behalf of Purdue found that 9 out of 10 people said OxyContin had a “devastating effect” on the community.
When the three Purdue executives pleaded guilty in 2007 to fraudulent marketing of OxyContin, Purdue blamed the bad acts on “certain of its supervisors and employees,” and argued OxyContin has “done far more good than harm.” More recently, the company has developed a tamper-resistant version of the drug that makes it harder to abuse and funded law enforcement training to curb opioid abuse.
Purdue is owned by holding companies and family trusts that benefit the families of founders Mortimer and Raymond Sackler. Nine members of the Sackler family serve on the company board. Richard Sackler is the son of Raymond Sackler and first started working at Purdue in 1971 when some of its main products included laxatives and antiseptics. The Sackler family owners have netted billions of dollars from the sale of OxyContin during the last 20 years.
The secretive family rarely grants interviews and is best known for its vast philanthropic efforts, which has resulted in the naming of museum wings, university buildings, and even an asteroid. There is the Arthur M. Sackler Gallery at the Smithsonian in Washington; the Serpentine Sackler Gallery in London; and the Sackler Wing at the Metropolitan Museum of Art in New York. The family has also endowed professorships and institutes at several well-known medical schools.