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1,000 Lawsuits Filed Against OxyContin Maker

Published On: April 8, 2006 05:22 AM 
Mark Fass
New York Law Journal
08-29-2005


One thousand "accidental addicts" filed suits Friday on Staten Island, N.Y., against OxyContin maker Purdue Pharma, thereby establishing the matter as the largest ever to be managed by the state's nascent Litigation Coordinating Panel.

The panel ordered coordination of OxyContin actions earlier this month following Staten Island Supreme Court Justice Joseph J. Maltese's denial of a class action bid in February. "Clearly ... it will be in the interests of all parties to have common discovery issues coordinated," the panel held in Hurtado et al. v. Purdue Pharma Company, Panel Case 0001/05.

"It will also promote efficiency and ease the burdens on the court system to have these related matters pending during the pretrial phase before one Justice rather than perhaps many, each of whom would have to become familiar with the medical and factual issues in order to address discovery questions and other problems that may arise," the panel added.

Maltese, a member of the four-judge Litigation Coordinating Panel, recused himself from the decision.

The other judges on the panel are Justices Helen Freedman, representing the 1st Department; Justice Raymond E. Cornelius from the 4th Department; and Justice E. Michael Kavanagh from the 3rd Department.

The OxyContin matter will now return to Maltese, who will oversee the coordinated discovery process.

With 1,000 plaintiffs already, the decision joins more cases and creates potentially greater liability than any of the other matters coordinated in the brief history of the panel.

The state court system's Administrative Board created the Litigation Coordinating Panel in 2002, making it the third such formal statewide coordinating system in the United States. Experts considered New York's class action regulations among the nation's most restrictive, and the board intended the panel to promote efficiency in handling cases that involved common issues but failed to meet the state's high certification standards.

Coordination joins cases for pretrial purposes, generally from discovery through the decision of any dispositive motions. The cases then return to their original venues, unless the parties stipulate otherwise.

The plaintiffs that joined the OxyContin coordination last week come not only from New York, but from across the country and Puerto Rico, according to attorney Andrea Bierstein, whose firm Hanly Conroy Bierstein & Sheridan represents the plaintiffs. SimmonsCooper and Staten Island-based Russo, Scamardella & D'Amato serve as co-counsel.

Donald Strauber and Mary Yelenick of Chadbourne & Parke are managing the defense for Purdue Pharma.

Each plaintiff alleges that OxyContin is as addictive as any other opiate, but that Purdue Pharma marketed it as a safe, effective pain medication. The plaintiffs claim they became addicted, suffering side effects including vomiting, blurred vision, paranoia and panic attacks. The drug has reported annual sales of $1.8 billion.

In February, Justice Maltese declined to approve a class action bid initiated by five Staten Island residents, opting instead to refer the matter to the coordinating panel.

"This court finds that a class action certification is not appropriate because of the different reasons and methods by which the drug was prescribed and used," he ruled in Hurtado v. Purdue Pharma Company, 12648/03.

NEW PROCEDURE

Indeed, lawyers have long struggled to certify classes in pharmaceutical actions because each patient's circumstances -- their reactions, medical histories and consultations with doctors -- differs. Lawyers have therefore frequently pursued federal coordination in pharmaceutical and mass-tort cases, the Vioxx and fen-phen cases being two of the more prominent recent examples.

In coordinating rather than certifying the OxyContin cases, the New York courts are treading down a well-trodden path, according to Bierstein.

"It's the state equivalent of the [federal Multidisitrict Litigation] procedures that I think have proven themselves as the way to resolve large-scale litigation," she said.

Strauber, however, contended that the coordination merely invites excessive litigation. Of the 600 OxyContin cases filed nationwide against Purdue Pharma, 335 have already been dismissed, he claimed.

Strauber added that of the five cases originally referred to the panel for coordination, only one survived as viable. The panel therefore "coordinated" a single case.

"If the cases hadn't been coordinated, there'd be one case pending in New York," according to Strauber. "But because they have been coordinated, there are 1,000. And one."