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.”
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.