BOSTON — OxyContin maker Purdue Pharma on Friday sought to minimize its role both in the opioid addiction crisis and as a player in the painkiller industry as it asked a Massachusetts judge to dismiss a lawsuit from the state.
The state alleges the company’s deceptive marketing of its drugs spawned the opioid epidemic in Massachusetts, but a lawyer for the company pushed back against that claim.
“The notion that Purdue has created this epidemic is a serious misperception,” attorney Timothy Blank argued for Purdue.
The arguments in Suffolk County Superior Court are the latest turn in Massachusetts Attorney General Maura Healey’s lawsuit against Purdue, members of the Sackler family, who control the company, and executives and board members.
Judge Janet Sanders did not rule on any of the defendants’ motions to dismiss from the bench, and said that reviewing all the submissions from all the parties would take some time.
During the day, dozens of family members of addiction victims protested outside the courthouse, some holding posters of people who died of overdoses.
Massachusetts filed its suit in June 2018, alleging that the company, the Sacklers, and executives misled the public about the risks of its drugs as it flooded communities with opioids, both contributing to overdose deaths and seeding a broader addiction crisis that has metastasized into one driven by illegal drugs.
It is one of some 2,000 lawsuits related to the roots of the addiction crisis from states, local governments, and tribes, most of which have been consolidated into a so-called multidistrict litigation in federal court in Ohio. But Massachusetts has struck its own path. Its case has focused solely on Purdue, its owners, and its executives — not the other manufacturers, wholesalers, or pharmacies also named as defendants in the MDL. It was also the first state to name individual Sackler family members as defendants, a tack other cases have since picked up.
In arguing for dismissal, lawyers for the individual defendants on Friday sought to distance their clients from any alleged corporate misbehavior — noting the limited years of their tenures and downplaying their influence over company-wide actions — and questioned whether board members and executives of a national company could be pulled into one state’s lawsuit. They told the judge that the state was lumping its allegations together and throwing them at an array of defendants, a lack of specificity that was leading to errors and false accusations.
Gregory Joseph, a lawyer representing 13 mostly former board members, including eight Sacklers, said that the state’s claim is based on the theory that board members green-lighted deceptive marketing strategies and aimed them at Massachusetts. But he argued that there was no evidence included in the lawsuit that showed the board approving marketing materials or demonstrating that they targeted Massachusetts.
“The board never met here, they never directed marketing at Massachusetts … there’s no here here,” Joseph said.
And Robert Cordy, who was defending the non-Sackler board members, argued his clients had no financial incentive to deceptively boost sales and cautioned against “dragging outside directors into litigation” when they acted appropriately as board members.
Blank, the attorney representing Purdue, pointed to state data illustrating that overdose deaths were now being driven by heroin and illicit fentanyl, not prescription opioids, to argue that Purdue could not be solely blamed for causing the overdose crisis. He also cited federal government data that showed that Purdue drugs accounted for only 4.6% of the opioid pills distributed in Massachusetts from 2006 to 2012 and information from the Massachusetts Department of Public Health that says “no single substance or health care practice is solely responsible for the opioid crisis.”
Sanders at times seemed to suggest that the arguments from Purdue were more suited for a trial on the merits of the state’s allegations, not as a legal foundation for throwing out the lawsuit entirely. She also raised questions, however, about the lawsuit naming non-Sackler board members as defendants.
“It does strike me as unusual,” she said.
Assistant Attorney General Sydenham Alexander sought to counter some of Purdue’s claims. He cited a 2017 note from CEO Craig Landau included in the lawsuit that outlines how “too many Rxs being written / too high a dose / for too long” caused the opioid crisis.
“These defendants were behind each one of those dangers,” Alexander said.
Alexander also pushed back on Purdue’s claims that it represented just a small sliver of the prescription opioid market. The company pushed the highest — and most dangerous — dosages, Alexander said, because they were the most profitable.
“All those prescriptions are not equal,” he said.
Attorneys for the state pointed to Purdue targeting prescribers in Massachusetts with their sales representatives and establishing a pain program at Massachusetts General Hospital to promote their drugs as evidence that the company, directors, and executives aimed activity at the state.
Lawyers for the state and for the multiple defendants also sparred over the statute of limitations of some of the executives’ alleged actions; whether Purdue’s alleged actions amounted to a “public nuisance,” as the state argues in its complaint; and whether the attorney general’s office had the authority to bring claims against some of the individual defendants.
Even though it is one state’s case, the Massachusetts lawsuit has garnered national attention. Its complaint, fully released earlier this year, relied on internal Purdue emails and reports to pull back the curtain on activity at the company, seeming to portray it as devoted to profits and certain members of the Sackler family as intimately involved and disparaging of people who had become addicted to opioids.
During the hearing, Sanders asked Joseph, the lawyer representing board members including the Sacklers, about situations cited in the complaint that depicted certain family members, namely Dr. Richard Sackler, as a micromanager.
“What about Richard Sackler, what about Kathe Sackler, what about Mortimer Sackler?” Sanders asked.
Joseph claimed that asking about budget numbers or returns on investment for new initiatives were appropriate conduct for any board member. He also cited an email included in the complaint from Russell Gasdia, formerly Purdue’s vice president of sales and marketing, asking the CEO to get Richard Sackler to leave the sales force alone as a demonstration that he was separate from the company staff and their actions.
Sanders countered, however, that the email could be construed to suggest that Richard Sackler was trying to assert control over the day-to-day operations of the company.
“The Sacklers’ reputation has been severely harmed by the distortions in this complaint,” Joseph said.
Lawyers with Healey’s office argued that the non-Sackler board members and company executives were legitimate defendants because they effectively worked with family members to do their bidding and build up profits. The Sacklers appointed the outside board members, Assistant Attorney General Jenny Wojewoda told the judge.
“This is no ordinary board … Purdue is essentially a very large, very profitable family business,” Wojewoda said.
Purdue has succeeded in getting some suits against it dismissed: one brought by the North Dakota attorney general, and several by a number of Connecticut municipalities. But in March, Purdue and members of the Sackler family agreed to a $270 million settlement with the state of Oklahoma.