Purdue Pharma, the company that makes the painkiller OxyContin, argued in a brief filed Monday that a Kentucky state judge made several mistakes in ordering the release of sealed records related to the marketing of the prescription pain pill and that his decision should be overturned.
In a 33-page brief filed with the Kentucky Court of Appeals, Purdue sought to reverse the May order of Pikeville Circuit Court Judge Steven D. Combs to unseal the records. They include the deposition of Dr. Richard Sackler, a former president of Purdue and a member of the family that owns the privately held Connecticut company. Combs stayed the release of the documents to allow for an appeal of his ruling.
The ruling by Combs was the result of a motion filed in March by STAT, which argued that there is is a substantial public interest in the documents, citing the epidemic of drug addiction and related crime stemming from the abuse of OxyContin in Kentucky and elsewhere. The STAT motion also contended that the public has a constitutional right to the records that trumps Purdue’s interest in keeping them secret.
All of the records were filed in the Pikeville court as part of a case brought by the state of Kentucky against Purdue alleging that the marketing of OxyContin helped create a wave of addiction and related crime. That case was settled last December by Purdue making a $24 million payment to the state.
The aggressive and illegal marketing of OxyContin, which was approved in 1995, has been blamed by many for helping to fuel the explosion of opioid abuse that has grown into a public health epidemic. The records filed under seal in the Kentucky case could provide new information on how Purdue marketed the potent opioid and what top executives knew about the addictive nature of the painkiller.
In its brief, Purdue stated that the sealed records sought by STAT played no role in rulings made in the case or the eventual settlement of it. As a result, the records are not considered “judicial documents” and should remain sealed because they “lie entirely beyond” any common law presumption of public access to the documents, the company argued.
The company said its argument was supported by Kentucky Supreme Court precedent. Combs, Purdue argued, misinterpreted the case law.
Purdue wrote that the deposition of Sackler was mistakenly filed by a court reporter and played no role in any decisions made by the court in the case. The company said it was unaware that the deposition had been filed until STAT filed its motion.
Purdue requested that the appeals court hold a hearing on the matter, writing it would allow for “a full exposition of the trial court’s errors in failing to properly apply Kentucky Supreme Court precedent in this case.” The appeals court does not have to conduct a hearing and could rule based on briefs filed by the parties. STAT has 60 days to file its brief in response to the Purdue filing.
The Purdue brief further details the nature of the sealed records, which represent a small subset of the documents turned over to Kentucky during the litigation. In addition to the Sackler deposition, they 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 sales representatives marketing the drug.
Purdue said it produced 17 million pages of documents to the state under a jointly agreed upon protective order to keep the records secret. The company said it would not have agreed to turn over those materials without the agreement to keep them secret. As part of its settlement with Purdue, Kentucky officials agreed to destroy records it received from the company during discovery.