Purdue Pharma on Monday asked the Kentucky Supreme Court to review a lower court decision that would unseal secret records about the company’s marketing of its opioid painkiller OxyContin.
The legal fight stems from a motion filed by STAT in 2016 to make public sealed records believed to show how Purdue promoted OxyContin and what company executives knew about the addictive properties of the drug, which has been blamed for helping spawn the opioid addiction crisis.
After STAT files a response, the state Supreme Court will decide whether to hear Purdue’s appeal. If it denies the appeal, the documents will be released.
“The lower court’s decision raises important and fundamental questions about protective orders and access to documents filed in the judicial record,” Purdue said in a statement. “These issues go beyond Purdue and the facts of this case, and potentially affect any individual, business or organization involved in litigation in Kentucky. We believe that the Kentucky Supreme Court should grant review.”
STAT executive editor Richard Berke said the issues in the case have been thoroughly litigated for almost three years and he is confident the Supreme Court will reject the appeal. “We’re hoping for a quick release of these documents,” he said. “The public deserves to know the full story behind Purdue and OxyContin.”
The records in question include a deposition of Dr. Richard Sackler, a former Purdue president and a member of the family that founded and controls the company; documents concerning internal analyses of clinical trials; settlement communications from an earlier criminal case regarding the marketing of OxyContin; and information about how sales representatives pitched the drug.
The records were accumulated as part of a lawsuit brought by the state of Kentucky against Purdue over its allegedly illegal marketing of OxyContin. The case was settled in December 2015, with Purdue agreeing to pay the state $24 million.
As part of the settlement, the state attorney general agreed to destroy its copies of the 17 million pages of documents it had collected. But additional copies of some of the documents remained in a sealed file in a courthouse in Pike County, in Eastern Kentucky.
In response to a March 2016 motion by STAT, Pike County Circuit Court Judge Steven Combs ruled in May 2016 that the records should be released, writing that “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.”
A three-judge appellate panel last month upheld Combs’s ruling. In the opinion, Kentucky Appeals Court Judge Glenn 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?”
In the motion filed Monday, Purdue argued that the appellate court’s opinion “guts litigants’ ability to rely on protective orders and retroactively strips protective orders of any role in litigation.”
The company’s lawyers have argued in court that the records sought by STAT were not relied upon when the settlement was approved and were therefore not subject to public release.
The legal battle in Kentucky is taking place as Purdue and other opioid manufacturers face an investigation by attorneys general from more than 40 states. Hundreds of cities, counties, tribes, and states are also suing Purdue and other drug makers, among others, arguing that the drug companies deceptively marketed their opioid painkillers.
Purdue has maintained it did not know the risk of addiction OxyContin posed until well after it was approved by federal regulators in 1996.