A Kentucky appeals court on Friday upheld a judge’s ruling ordering the release of secret records about Purdue Pharma’s marketing of the powerful prescription opioid OxyContin, which has been blamed for helping to seed today’s opioid addiction epidemic.
The records under seal include a deposition of Richard Sackler, a former president of Purdue and a member of the family that founded and controls the privately held Connecticut company. Other records include marketing strategies and internal emails about them; documents concerning internal analyses of clinical trials; settlement communications from an earlier criminal case regarding the marketing of OxyContin; and information regarding how sales representatives marketed the drug.
The unanimous opinion by a three-judge panel is a victory for STAT, which filed a motion more than two years ago to unseal the records — which were stored in a courthouse in a rural county hit hard by overdose deaths. STAT won a lower-court order in May 2016 to release the documents, but after Purdue appealed, the judge stayed that order.
“We’re tremendously encouraged by this ruling,” said Rick Berke, the executive editor of STAT. “More than two years after we filed this suit, the scourge of opioid addiction has grown worse, and the questions have grown about Purdue’s practices in marketing OxyContin. It is vital that that we all learn as much as possible about the culpability of Purdue, and the consequences of the company’s decisions on the health of Americans.”
Click here to read the ruling from the Kentucky Court of Appeals
Despite Friday’s ruling, the company records will not be made public immediately. Purdue has the opportunity to decide whether it wants to request another hearing before the appeals court or ask the Supreme Court of Kentucky to overturn the decision. The company has 30 days to appeal the decision to the state Supreme Court.
“We’re disappointed with the Court of Appeals’ decision today,” Purdue said in a statement. “The documents in question were never entered into evidence and did not play a role in any judicial decision. Under Kentucky law, such documents should remain private as outlined in the Protective Order with the Commonwealth of Kentucky.
“This decision raises important issues under Kentucky law, and we intend to pursue our rights to seek judicial review of the decision.”
The decision comes as Purdue and other prescription opioid makers face an investigation of their marketing practices by a coalition of attorneys general from more than 40 states. In addition, hundreds of cities, counties, tribes, and states have in recent months filed a fresh round of lawsuits against Purdue alleging OxyContin was deceptively marketed; the suit brought by Massachusetts also named the Sackler family as defendants.
The documents in Kentucky could shed new light on the allegations made in those cases. In 2007, Purdue paid more than $600 million in fines and three executives pleaded guilty to a criminal charge to resolve a federal investigation that the company falsely claimed OxyContin was less addictive than other narcotics.
The three-judge panel in Kentucky heard oral arguments in the case in June 2017. In their ruling Friday, the judges rejected Purdue’s arguments to deny the public access to the records based on Kentucky law.
“We have exhaustively examined legal principles underpinning Kentucky’s common law right of access to court records,” they said in the ruling. “We conclude that the Pike Circuit Court’s … order to unseal records is consistent with our analysis and well within the trial court’s discretion.”
The ruling stems from a motion filed by STAT in March 2016 to unseal records filed as part of a lawsuit the state of Kentucky brought against Purdue, alleging the company illegally promoted OxyContin. The case was settled in December 2015 when Purdue agreed to pay the state $24 million.
As part of the settlement, the Kentucky attorney general agreed to destroy its copies of 17 million pages of documents produced during the eight-year legal battle.
But some of the same documents remained in a sealed file in a rural Eastern Kentucky courthouse. At the request of STAT, the judge in that case ordered the unsealing of the marketing documents filed with the court, as well as the deposition of Sackler.
“The court sees no higher value than the public (via the media) having access to these discovery materials so that the public can see the facts for themselves,” Pike Circuit Court Judge Steven Combs wrote in a May 2016 ruling.
The appeals court supported that reasoning. The opinion by Judge Glenn Acree noted that the attorney general reached the settlement and agreed with Purdue to seal the court records. Acree wrote: “Without access to court records, how can the public assess whether a government employee’s decision to compromise a valuable claim of the people adequately protected their interest or maximized the claim’s value?”
The deposition of Sackler, taken in 2015 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 pain reliever. Richard Sackler played a key role at the company over three decades, serving as president and co-chairman of the board.
His father, Raymond, founded Purdue with his two brothers in 1952. Several members of the family continue to serve on the board of directors. All of the company’s profits, including the billions of dollars from the sale of OxyContin, go to Sackler family trusts and related entities.
The family is well-known for its philanthropy, and the Sackler name is affixed to hospitals, universities, and museums across the world.
As Purdue has come under more scrutiny, it has sought to repair its image. Earlier this year, the company famous for its once aggressive courtship of doctors announced it would cease actively marketing opioid products. A Purdue advertising campaign launched last year highlighted the steps it was taking to help stem the opioid crisis.
Purdue has maintained it did not know the risk of addiction OxyContin posed until well after it was approved in 1996, but federal prosecutors discovered in 2006 that company officials had received concerning evidence about the drug soon after it landed on the market, according to the book “Pain Killer: An Empire of Deceit and the Origin of America’s Opioid Epidemic,” which was excerpted in the New York Times.
Purdue lawyers urged the appeals court during a June 2017 hearing to overturn the decision by Combs, arguing the judge did not have the discretion to order the release of the records. The company’s lawyers also contended that the documents sought by STAT were not relied upon by the court in approving the settlement of the lawsuit brought by Kentucky and were therefore not “judicial documents” subject to public release.
STAT’s lawyers argued that Combs’ decision was based on “well-settled law” and that judges in the state are given “tremendous deference” when it comes to decisions regarding public access to court records. STAT was represented by Jon Fleischaker of Kaplan & Partners and Jeremy Rogers of Dinsmore & Shohl, both in Louisville, Ky.
“Really what the court is saying is these are public records,” Fleischaker said Friday. “The public has an interest in them, and the public has a right to them.”
He added that he’s received calls about the case from other private attorneys, as well as officials from government agencies.
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I want to hear more about how all these laws are affecting chronic pain patients. We already know there have been hundreds of suicides if not thousands due to patient abandonment and pain patients being forcibly tapered down to an ineffective dose for their pain management. People are suffering. Let’s talk about illicit drugs like fentanyl and heroin. I would be very happy to see this amount of effort put into getting that stuff off the street instead of doctors being persecuted along with their pain patients being stereotyped as junkies for the audacity of having pain due too many different illnesses.
Fentanyl is a prescription drug that is being used in an illicit Manner and that is part of the problem since deaths of people who die of and overdose with Heroin laced with fentanyl that death is counted twice once as a pharmaceutical opiate death and once as a street drug!
So that is obviously part of the problem and another part of the problem is that they don’t understand that chemical dependence it’s something that naturally happens on opiates but it’s not the same thing as addiction although it’s now reported the same.
As a chronic pain patient I would like to follow any of the the makers around for a day and repeatedly hit them in the spine with a bat since that’s how my back feels all day everyday and getting up and trying to walk as I would need to do to do almost anything like use the restroom or buy food or eat it and I was stable on an amount of morphine milligram equivalent that is no longer accessible to me so now at 39 I am predominantly house and bed-bound! I should not have to find a doctor that’s willing to say that I meet the criteria to be a palliative care patient because in having intractable pain AKA IP it is a life-limiting condition which does make me qualified to be a palliative care patient that would prevent the ridiculous morphine mg equivalent limits that amount to one-size-fits-all Medicine without any medical practitioners involved, but they do have three groups of people that are not subject to the current recommendations and convey our current cancer, palliative care and hospice care – the problem is that many providers do not know the difference between palliative and hospice because when I spoke to my doctor about it she said you have to have six months to live which is not at all the case because with palliative care if you can still continue with life-extending treatment and a number of other things that is not the case with hospice care which would be an estimated 6 months left but it does require you to stop life extending care and looking for these types of loopholes so Dr licenses aren’t taken away just too then go to a pharmacy and have them say we’re not going to fill it we don’t think that your diagnosis meets this amount of pain control is equally ridiculous!
Coxycontin is a wonderful management in pain if taken twice day 12 a part of you need more to please the brain you are in soul pain probably shooting feytenal and h heroin medicine is even lives addiction will lives not all of us at addicts one size fits all most of us on cpc depends on if to live quialty of life
Thank you STAT for exemplifying what great journalism is. For the public good, hopefully you won’t have to fight this further, but that won’t be the case. Please continue to fight for the information that needs to see the night of day for the good of the people.
These documents should have been released back in 2007. this shows how corrupt the pharma business is , and how easily they bribed congress, attacked the laws, and lied to the public. These pharma companies with the help of the FDA, are still misleading the public, spreading lies and propaganda, and exploiting the addicted and pain patients. They made a lot of money peddling alternatives too.
the sacklers, shkreli’s, bresch’s and their ilk should be in jail.
but not all pharma companies are the same. please don’t confuse this behavior with the thousands of scientists and researchers who spend their lives working to discover and develop treatments to help patients.
while STAT loves to pound the “pharma is evil” trope, the reality is much more complex.
Dear Kerry,
STAT was around in 2007, and they did virtually no scrutiny then. STAT tends to cheer lead the industry. Going after the opioid peddlers deceptive marketing practices a decade later, is a safe topic. They can appear to be going after big bad pharma, by only looking at a narrow version of the industry.
The scientists and researchers have little to do with this except for the ones who have gone public to market themselves as experts. STAT along with the rest of our mass media, has been gas-lighting the public, giving the appearance of journalism, or objective scrutiny, while covering for the marketing, misinformation and lies, that led to this “crisis.”
The so called ‘Opiate Crisis’ was created by the pharmaceutical industry with a lot of help from Congress, which undermined the laws and agencies that were supposed to protect us. Not only did they mislead us about the “big bad Regulators,” as the regulatory agencies were dismantled, they used the misinformation to market even more pharmaceuticals, devices, and even alternative treatments.
STAT generates profits by advertising, and it is often hard to distinguish between marketing and fact based information.
High (so to speak!) time. Tired of seeing the $150K+/- full page “aren’t we wonderful” ads from Purdue Pharma in the NYT. They could have taken out just one that said, “We’re sorry” and spent the rest of the money setting up free rehab facilities and narcan instead of running up a business expense and aggravating the general public. I cringe every time I enter a “Sackler” building – one, it turns out, built on the corpses of teens and young adults from my community.
While the same meds that I take correctly as the label says without chewing without trying to get around any of the safety measures used to allow me to lead a normal life with walking and buying groceries and making dinner all in the same day rather than now since they have cracked down on the number of morphine milligram equivalent that they will prescribe for one-size-fits-all medicine I am now a low of 39 years old and predominantly house and bed bound. Yet I passed every drug test that happens every month and I pass every pill count and I don’t ask for my meds to be filled early and I don’t take them early even though I am currently in so much pain I cannot do the day-to-day things that need to be done for 1 to take care of themselves as often as they need to be done all because illicit drugs have been lumped with prescription medication but sure let’s blame the pharmaceutical company even though it has been shown but since the Crackdown on pain patients the number of opiate overdoses has gone up and the amount of people in pain has gone up because it is not the pain patients that are giving their Fentanyl to the heroin dealers so that they can cut their drugs with it! But people thinking that it happens that way is stupid and why I have to pee in a cup every month so I can test positive with the right levels of my pain meds every month to prove I’m not diverting my pain meds but using them yet still being in enough pain to know all too well why they say leaving people in treatable pain is tantamount to torture!
The prestigious university, founded by John Purdue 150 years ago, should sue the pharmaceutical company to force it to change its name. The actions of the latter can cause harm to the original name holders.
I applaud the court’s ruling. The drug companies have blood on their hands. It is time to expose all they have done to cause and continue the opiate epidemic. STOPPNow the Opiate Epidemic.
Look up the real numbers there is no opiate epidemic! We’ve been in a war for well over 20 years or people coming back with devastating injuries plus baby boomers are at the age when they have the most pain in their life and many of them come from previous Wars like my adopted grandfather plus there’s just more people so of the 200 million chronic pain patients in the US of whom well over 20 million are on extended release pain meds which Oxycontin is but when they cracked down on chronic pain patients the number of overdoses increased because it is not the pain patients that are overdosing and it is not the pain patients that are diverting pain meds to the street but we are the ones who are now suffering excruciating pain all day everyday and it has long been said that extreme treatable pain is tantamount to torture!
Get information from more than one side before you make a decision since the opiate crisis would not have such high numbers of Overdose deaths if it did not count heroin laced Fentanyl as a person dying two times once with a pharmaceutical substance and once with a street drug but last I checked somebody can only buy the one time!