By Eric T. Berkman
 |
| Judge Alice Gibney |
The state could bring a public nuisance claim against a
group of pharmaceutical companies for their actions in promoting and
distributing opioids in Rhode Island, a Superior Court judge has ruled.
The defendant drug makers and distributors argued in a
motion to dismiss that the state did not plead facts sufficient to allege that
they unreasonably interfered with a right common to the general public and were
in control of the instrumentality of nuisance at the time the nuisance
allegedly occurred.
Judge Alice B. Gibney disagreed and denied their motion.
“[A]s the State has acknowledged, the opioid crisis has been
defined as an epidemic by both public health experts and the federal
government,” Gibney wrote. “Accordingly, the Court finds that the State has
properly identified the opioid crisis as a public right under Rhode Island law,
and more specifically, the Court agrees that freedom from an overabundance of
prescription opioids is a public right.”
Additionally, Gibney said, “the Court finds that reasonable
minds could infer that the actions of Manufacturers and Distributors could have
caused the current opioid crisis that plagues Rhode Island.”
The 44-page decision is State
v. Purdue Pharma L.P., et al., Lawyers Weekly No. 61-088-19. The full text
of the ruling can be found here.
“The opioid epidemic has had a devastating effect on people
in Rhode Island and across the country,” Attorney General Peter F. Neronha,
whose office brought the case, stated in a press release. “The people of Rhode
Island deserve their day in court, and we intend to move this case forward as
expeditiously as possible.”
Joseph V. Cavanaugh III of Providence, who represented
McKesson Corp., one of the distributors named in the lawsuit, declined to comment.
Attorneys for other defendants could not be reached for comment prior to
deadline.
Public health crisis
According to the state’s complaint, defendant Purdue Pharma,
which developed the controversial opioid OxyContin in the mid-1990s as a pain
medicine, aggressively marketed the product to Rhode Island physicians while
misrepresenting its risk of addiction, all in an effort to get providers to
prescribe it to more patients, thereby generating increased profits for the
company.
In 2007, Purdue and three of its executives pleaded guilty
to federal criminal charges related to their deceptive marketing of the drug
and had to reimburse Rhode Island for $1.2 million in costs incurred by the
state Medicaid program.
In its plea agreement, Purdue admitted to falsely promising
that opioid addiction occurred in less than 1 percent of patients and that
opioids were not addictive when legitimately prescribed.
After the plea agreement, however, Purdue allegedly continue
to mislead providers and the public about the drug, spending hundreds of
millions of dollars promoting its use through continuing medical education
seminars, advertising, and in-person sales calls, while publishing materials
that allegedly continued to trivialize its risk of addiction and overstate its
benefits.
Meanwhile, Purdue allegedly failed to report suspicious
prescribing of its product despite having information, through its
reimbursement program, about where its drugs were going as they progressed from
wholesalers to retailers and down the supply chain.
Purdue and defendant Insys Therapeutics, the manufacturer of
an addictive fentanyl-based painkiller, also allegedly had access to
prescribing data and failed to report suspicious orders or retailers beginning
in 2014. Insys in particular allegedly paid doctors to prescribe its product,
Subsys, which was approved only for cancer patients, while persuading
commercial payors to cover the drug for non-approved uses.
As a result, the state alleges, prescriptions in Rhode
Island exceeded the national average in opioid prescriptions, reaching a high
in 2012 of 83 prescriptions per 100 people and costing the Medical Assistance
Program more than $6 million in prescriptions.
In that context, various distributors of the drugs engaged
in allegedly illegal efforts to ensure pharmacies could distribute enough
opioids to satisfy the heightened demand among patients.
Ultimately, that resulted in what the state characterizes as
a public-health crisis with a skyrocketing overdose rate that puts Rhode Island
fifth in the nation and with a 300 percent increase in overdose fatalities from
2011 to 2016. The state also alleges that the increased volume of prescribing,
allegedly driven by the defendants’ efforts, correlated to black markets for
diverted prescription opioids as well as a rise in heroin and fentanyl abuse by
those who could no longer legally obtain — or afford — prescription opioids.
In June 2018, the state sued Purdue, Insys and several
distributors in Superior Court, alleging that their campaign to unlawfully
promote and distribute opioids in Rhode Island constituted public nuisance,
violations of the state False Claims Act, fraud, negligence and unjust enrichment.
The defendants moved to dismiss for failure to state a
claim. Meanwhile, this past June, the state voluntarily dismissed all claims
against Insys.
Public right
Gibney rejected the defendants’ argument that the state had
failed to adequately plead the elements of public nuisance under Rhode Island
law.
She pointed out that the Rhode Island Supreme Court, in its
2008 decision in State v. Lead Industries
Association, Inc., defined public nuisance as the unreasonable interference
with a right common to the general public by someone with control over the
instrumentality of nuisance at the time the harm occurred.
With respect to the first element, interference with a
public right, Gibney said the Supreme Court, in Lead Industries, looked to the Restatement of Torts to draw the
line between a public right and an aggregation of private rights.
Under the Restatement, Gibney noted, the interests of an
entire community can be threatened by a danger to even one individual, as in
the case of one person being infected with smallpox creating the risk of an
epidemic.
Because both public health experts and the federal
government had defined the opioid crisis as an epidemic, Gibney continued, the
state satisfied the first element.
The judge also found that the state properly alleged control
by the defendants over the instrumentality of nuisance, namely opioids.
“The State … frames the nuisance as the opioid epidemic
itself, rather than specific instances of individuals being harmed by use or
misuse of opioid pharmaceuticals [and] alleges that the nuisance was ongoing as
Manufacturers and Distributors continued to misrepresent the risks and benefits
of opioids, funnel excessive amounts of medicines into Rhode Island
communities, and falsely promote and distribute these medicines generally,”
Gibney wrote.
Viewing the disputed facts in the light most favorable to
the plaintiff, Gibney said she found the manufacturers and distributors were in
control of “the instrumentality of the nuisance at the time of its occurrence.”
Gibney further determined that the state had, contrary to
the defendants’ assertions, alleged sufficient facts for “reasonable minds” to
infer that their actions caused Rhode Island’s opioid crisis.
Accordingly, she concluded that the state properly alleged that
“the Defendants committed an unreasonable interference with a right common to
the general public, that the Defendants were in control of the instrumentality
at the time the nuisance occurred, and that Defendants’ conduct caused the
public nuisance.”
COURT: Providence
Superior Court
ISSUE: Could the
state bring a public nuisance claim against a group of pharmaceutical companies
stemming from the promotion and distribution of opioids in Rhode Island?
DECISION: Yes
