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Major opioid manufacturer asks judge to dismiss Wyoming lawsuit

January 4, 2019

The creator of OxyContin has asked a Wyoming judge to dismiss the Equality State’s lawsuit against the pharmaceutical company, claiming that the federal Food and Drug Administration’s previous findings invalidate the state’s legal challenge.

In October, Wyoming’s Attorney General’s Office announced it had filed suit against Purdue Pharma, the drug company most publicly associated with the opioid crisis, in Laramie County Circuit Court. In its lawsuit, the state claimed Purdue effectively used deceptive practices to market opioids in Wyoming, selling 16 million pills here between 2001 and 2017.

In its 115-page lawsuit, the state alleges that Purdue was deceptive in its marketing and that it worked to broaden the pool of patients who physicians deemed eligible for an opioid prescription. Further, the state claims that Purdue “overstated the benefits of chronic opioid treatment while downplaying its serious risks.”

In response, Purdue — through its Cheyenne attorneys, Richard Mincer and Erin Berry — alleges that the Food and Drug Administration had approved the use of opioids for treating chronic pain.

“First, as a matter of law Purdue’s statements are not false or misleading,” Purdue’s attorneys wrote in the company’s request that the case be dismissed. “The medications at issue are FDA-approved to treat chronic non-cancer pain, so any statements that are consistent with that approval cannot be deceptive or fraudulent as a matter of law.”

Purdue’s lawyers note that the FDA has “exclusive authority to determine whether a prescription is ‘safe and effective’” and they claim that Wyoming is attempting to undermine the FDA’s authority.

“The State bases all claims on the theory that it was a violation of Wyoming law for Purdue to promote opioids for a use specifically approved by the FDA — long term treatment of chronic non-cancer pain,” Purdue’s attorney’s wrote. “But statements that generally comport with FDA-approved labeling are not misleading as a matter of law.”

State Attorney General Peter Michael declined to comment Wednesday, citing his office’s “preparation of legal pleadings.” He told the Star-Tribune last spring, months before the state filed suit, that his office was working with other states to investigate opioid manufacturers.

His office’s lawsuit spends considerable time laying out the strategies Purdue deployed to ultimately sell more OxyContin in Wyoming, strategies that the suit claims were misleading and deceptive. The complaint ticks off sales calls, lunches and promotional tools used to make Wyoming physicians more comfortable with prescribing the drug and Wyoming residents more likely to be aware of and interested in OxyContin.

The strategy apparently worked: The suit claims OxyContin sales here jumped 800 percent between 1998 and 2004, and again increased 700 percent from 2006 to 2016.

Nationwide, OxyContin makes up about 30 percent of the painkiller market, according to The Week. It earned Purdue $1.8 billion in 2017 alone.

Wyoming’s suit claims that Purdue has made $35 billion in total sales of opioids. In Wyoming, Purdue dispatched a sales force that “logged more than 21 thousand sales calls to at least 453 different healthcare professionals” here.

The suit came months after Carbon County sued a number of opioid manufacturers, including Purdue. Before that, the Northern Arapaho Tribe sued several manufacturers. A number of other states, including Montana, have filed similar lawsuits, and counties in Idaho, Colorado and Nebraska have all taken legal action against pharmaceutical companies tied to opioids’ spread.

Between 1999 and 2016, more than 350,000 people died nationwide from overdoses that included opioids, according to the lawsuit. Wyoming has avoided the worst of the epidemic, which has laid waste to rural communities elsewhere in the U.S. Still, the suit alleges that “substance abuse treatment admissions for both heroin and non-heroin opiates increased by 345% between 2005 and 2017.” Overdose deaths related to the drugs have more than quintupled since 2003.

“More importantly, Defendants’ deceptive promotional practices have destroyed lives and devastated Wyoming families who have lost loved ones to the crisis,” the state wrote in its initial court filing.

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