Pubdate: Mon, 18 Aug 2003
Source: Lexington Herald-Leader (KY)
Copyright: 2003 Lexington Herald-Leader
Author: Charles B. Camp
Bookmark: (Oxycontin/Oxycodone)


Purdue Fights Oxy Suits Tooth-And-Nail -- And Wins

HAMILTON, Ohio - "It's going to be a war," Louisville attorney David Ewing 
predicted recently about a lawsuit he's pursuing in Butler County common 
pleas court.

Lawyerly exaggeration, but forgivable given the opponent he has chosen.

Ewing is on a team of attorneys that is trying to prove that Purdue Pharma 
over-promoted the painkiller OxyContin and failed to warn patients and 
doctors of its risks.

He's doing better than most others in his shoes -- 290 such cases are 
pending in state and federal courts nationally, including seven in 
Kentucky. The Butler County suit is the only one so far to achieve class 
action status.

That means that if it reaches trial and Purdue loses, thousands of Ohio 
residents could be in line for a piece of a damage award.

But Ewing's odds aren't great. Purdue has vigorously denied any improper 
marketing. And in court it has exhibited a tough, no-compromise stance 
right from the very first suit two years ago.

The company publicizes the fact that it has never lost an OxyContin case, 
never settled one and never paid anything in fees or compensation. In fact, 
no case has ever made it to trial, partly because Purdue works hard to win 

About three dozen cases have died in preliminary skirmishing -- many at the 
hands of the lawyers who filed them, because defeat loomed.

The company has even argued against letting some plaintiffs throw in the 
towel when they wanted to, on the theory that a judge's dismissal would 
send a louder victory message.

Those who sue "hoping for a quick settlement will be sorely disappointed," 
promised Howard Udell, Purdue's general counsel, following one dismissal.

"We will not give in to such suits."

That hard line reflects a belief that a settlement -- or worse, a trial 
loss -- will spawn waves of new suits, said Purdue spokesman Tim Bannon. 
The number of outstanding cases is creeping up as it is.

Company officials also claim a higher motive for their stance. They say 
that the lawsuits, which focus on the risk of dependence or addiction, 
scare legitimate OxyContin patients out of taking the medication that their 
doctors order.

"People who suffer from accident and disease are victimized twice when 
baseless lawsuits interfere" with their treatment, said Dr. Paul 
Goldenheim, an executive vice president, at the end of last month as Purdue 
announced six new dismissals.

Opposing lawyers frame the conflict -- and their frustration -- in equally 
grand terms.

"It's unfortunate that the courts have not seen the damage that Purdue is 
doing to the American public," said Annette Morgan-White, a Manchester 
attorney who has been in several suits.

"The company is winning, and it's unbelievable."

She calls OxyContin a highly addictive drug that should be used only to 
comfort dying patients.

Class Action

The Butler County suit, filed in July 2001, moved slowly until August 2002, 
when a court ruled that it could cover all people in Ohio who believed the 
drug injured them physically or emotionally.

A month ago, an appeals court upheld that decision and put the case back on 
course toward trial. Purdue said that it will appeal to the Ohio Supreme Court.

In its ruling, the appeals court ordered one change: It excluded anyone who 
obtained OxyContin illegally.

The Butler County case names as class representatives one man, who cites 45 
years as a preacher, and two women -- one a 79-year-old retired plant 
worker and the other a former nurse's assistant. All say they suffered 
damages after being prescribed OxyContin legally.

Lawyers who filed the case said they had consciously screened out abusers, 
an issue that has hurt other OxyContin suits. Nonetheless, LaDonna Howland, 
the former nursing assistant, has an extensive police record, including 
crimes related to drug abuse.

In court documents, she claimed that she committed the drug crimes after a 
doctor prescribed OxyContin for pain from a car wreck and she became 
hooked. She pleaded guilty to 10 counts of obtaining pills illegally and 
later completed a drug treatment program.

"My whole life centered around my ability to obtain this drug to feed my 
dependency," she said. At the time, she crushed and snorted the pills for 
maximum effect, her affidavit said.

Defense lawyers zeroed in on Howland's past.

"LaDonna Howland is a convicted felon," declared one document. Another 
listed a record of 26 illegal acts that included lesser offenses of 
disorderly conduct and driving without a license.

"It was a very rough time of my life," Howland said in an interview earlier 
this year. She said she now treats her back pain "with Aleve and will-power."

Opposing lawyers have been aggressive as well.

"What are they afraid of?" Cincinnati litigator Stanley Chesley demanded 
during a hearing last year. He was complaining that Purdue's lawyers were 
slow to deliver documents that he said he was entitled to see.

He accused the company of "a cover-up" and playing "hide-and-seek" and 
twice described Purdue as a corporate drug dealer.

Nonetheless, the game isn't yet as rough as it has been in some cases.

Messy Litigation

In Portsmouth, Ohio, in early 2001, lawyer Joseph Hale filed the country's 
first OxyContin suit. It was dismissed about a year and a half later.

But in between, Hale, not Purdue, wound up on the defensive as the company 
argued that he should be punished personally for a legal tactic he tried.

Hale filed a motion to stop Purdue from using the knowledge of several 
prominent former law enforcement figures it had retained.

One was the late Joseph Famularo, former U.S. attorney for the Eastern 
District of Kentucky.

Famularo had once compared rampant OxyContin abuse in Kentucky to a "locust 
plague." He became an unpaid Purdue consultant after leaving the federal job.

Hale argued that Famularo and the others were privy to law enforcement 
information that would give Purdue an improper advantage. Purdue countered 
that Hale was in violation of a federal court rule that bars frivolous filings.

The judge didn't buy either argument, and Hale eventually had the case 
dismissed after one of his key witnesses died from car-accident injuries. 
Purdue said it didn't file a formal complaint against Hale because it 
essentially won the case.

High feelings linger, however. In response to a question recently, Purdue 
spokesman Tim Bannon called Hale's tactic "preposterous."

Hale didn't return a call seeking comment. But in an interview two days 
after the dismissal, he labeled Purdue's victory "hollow" and said it had 
only proven that a giant corporation with "high-priced, first-rate law 
firms" can beat a "small-town lawyer" and the family of a drug-overdose victim.
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MAP posted-by: Beth Wehrman