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Tong vows to keep taking fight to Purdue Pharma

January 25, 2019

In one of his final acts as state attorney general, George Jepsen sued OxyContin maker Purdue Pharma for allegedly deceiving patients and medical professionals about its top-selling drug.

New Attorney General William Tong, a former state representative for Stamford and Darien who was elected last November, said the lawsuit is one of his top priorities. It is one of hundreds filed in recent years against the Stamford-based company by local and state governments, as the plaintiffs seek accountability for the opioid crisis that continues to grip the country.

“Connecticut has a very serious and sincere interest in this issue,” Tong said in an interview this week.

Purdue has denied the lawsuit’s allegations, while saying it wants to work with public officials to tackle the causes of the crisis.

Trial or settlement?

The lawsuit made Connecticut the 20th state last year to sue Purdue, joining Arizona, Florida, Massachusetts, New York and others.

Paralleling claims filed by those states, Connecticut’s litigation maintains Purdue and members of the Sackler family, which owns the company and holds several board seats, falsely marketed opioids, including OxyContin, which account for the majority of the company’s revenues, estimated at more than $3 billion annually.

Connecticut claims Purdue’s aggressive marketing campaign misled doctors and downplayed the risks of addiction to the company’s potent drugs. The Sacklers and other executives directed thousands of visits by sales representatives to doctors, encouraging inappropriate levels of opioid prescribing, the lawsuit states.

The Purdue sales force — which was disbanded last year — allegedly tried to get more patients on higher doses, for longer periods, and treated doctors who prescribed the drugs in large amounts to meals, gifts and cash.

“Will (the lawsuits) result in formal litigation and a trial on the merits, or will it result in a settlement — I don’t know,” Tong said. “But I think it’s important to note that a settlement can be every bit as effective in making sure that we have the resources for treatment and prevention (of opioid abuse), and may be even more effective than going to litigation and trial.”

Going to trial would hardly guarantee a favorable verdict for the state.

On Jan. 9, state Superior Court Judge Thomas Moukawsher dismissed lawsuits filed against Purdue and several other opioid makers by about 20 Connecticut cities and towns — including Bridgeport, New Haven, New Britain and Waterbury.

“A credible suggestion on measuring causation might have given this court some pause,” Moukawsher wrote in his decision. “But during the long hours … during which this motion was argued in court, it became apparent that the plaintiffs filed these lawsuits without first thinking of a way to sort out the causation conundrum.”

In 2017, 1,038 people died of drug overdoses in Connecticut, according to the state Chief Medical Examiner’s Office. Nearly half of those deaths involved heroin — which has made a roaring comeback on the heels of widespread prescription opioid addiction. Many who first become addicted to doctor-provided pills turn to the cheaper and easier-to-get street drug.

Bridgeport Mayor Joe Ganim has said the city plans to appeal, and New Britain and New Haven are considering doing the same.

“The decision will have a limited effect outside Connecticut,” said Robert Bird, a professor of business law at the University of Connecticut. “States have varying approaches to proving causation that will be applied in their own jurisdictions. Depending on state law, this case could have gone the other way.”

Meanwhile, some critics of Purdue have suggested pursuing criminal charges against the company. Such an option is off the table for Tong’s office, as its jurisdiction is all but limited to civil litigation.

The state Division of Criminal Justice’s work to tackle the opioid crisis includes the prosecution of individuals found to have contributed to others’ fatal overdoses, according to an agency spokesperson. But state law does not enable criminal prosecution of corporations, the spokesperson added.

Purdue also faces an investigation by the U.S. Attorney’s Office in Connecticut, which is part of the U.S. Department of Justice.

A DOJ spokesman declined to comment on the inquiry.

Widespread litigation

To help manage the proliferation of lawsuits, a Cleveland-based federal judge, Dan Polster, is overseeing approximately 1,700 complaints filed by municipal and county governments in a process known as “Multidistrict Litigation.” A comprehensive settlement — which would probably be reached through the MDL proceedings — could take several more months, even years, to finalize.

“These defendants need ‘eternal peace,’” Paul Hanly, co-lead counsel for the MDL plaintiffs, said in a recent interview. “That’s why this settlement is incredibly complex … because it has to be completely buttoned up.”

While the MDL process moves forward, more lawsuits pour in against Purdue. A Jan. 3 complaint by Georgia marked the latest filed by a state.

“A settlement is still a reasonable or viable possibility,” Bird said. “I don’t think Purdue can wait these lawsuits out. It’s just a matter of how the shifting public landscape will shape the climate for a settlement.”

But the courts are not the only recourse for the plaintiffs.

Connecticut remains in a 42-state investigation of Purdue, and six other pharmaceutical firms, that it joined in 2016.

Like the complaint, the multistate inquiry could end with a settlement.

“The overarching goal is to stop this epidemic from spreading and provide for treatment and long-term prevention to help Connecticut families and families across this country who suffer from this scourge and stop the abuse of these powerful, and, in many cases, lethal drugs,” Tong said.

pschott@scni.com; 203-964-2236; twitter: @paulschott

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