Commonwealth v. Purdue Pharma, L.P., 100819 MASUP, 1884CV01808

Docket Nº:1884CV01808
Opinion Judge:Janet L. Sanders, Justice of the Superior Court
Party Name:COMMONWEALTH of Massachusetts v. PURDUE PHARMA, L.P. et al.[1]
Case Date:October 08, 2019
Court:Superior Court of Massachusetts
 
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COMMONWEALTH of Massachusetts

v.

PURDUE PHARMA, L.P. et al.[1]

No. 1884CV01808

Superior Court of Massachusetts, Suffolk

October 8, 2019

MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT RUSSELL GASDIA’S MOTION TO DISMISS

Janet L. Sanders, Justice of the Superior Court

The Commonwealth brought this action against Purdue Pharma, L.P. and Purdue Pharma, Inc. (collectively, Purdue) seeking redress for harms that it claims were caused by Purdue’s deceptive marketing and sale of its opioid products in Massachusetts. The First Amended Complaint (the Complaint) also names as defendants seventeen other individuals; among them is defendant Russell Gasdia, who was Purdue’s Vice President of Sales and Marketing beginning in 2007. Gasdia now moves to dismiss the claims against him pursuant to Mass.R.Civ.P. 12(b)(6). In support, he contends that the Attorney General has no legal grounds for pursuing the claims against him because there is no evidence that he has engaged in misconduct after his retirement from Purdue in December 2014. In the alternative, Gasdia argues that the claims are time-barred. For the following reasons, this Court concludes that the Motion to Dismiss must be DENIED .

BACKGROUND

For purposes of this Motion, this Court assumes as true all the allegations in the Complaint. Those allegations have already been summarized in this Court’s Memorandum of Decision dated September 16, 2019, denying Purdue’s Motion to Dismiss (the September 16 Decision). As to those allegations specific to Gasdia, he is described in the Complaint as one of four key executives who oversaw or promoted the activities alleged to be unfair and deceptive. Complaint, ¶596. In his position as Vice President of Sales and Marketing, he was defendant Richard Sackler’s "voice in the field." Complaint, ¶706. He was involved in the "fundamentals of getting more patients on opioids at higher doses for longer periods" and of targeting the most prolific opioid prescribers. Complaint, ¶700. He worked to expand the number of sales representatives promoting opioids and drove them to visit prescribers more frequently. Complaint, ¶¶702-06. He engaged in these efforts even though he knew that higher doses of Purdue opioids put patients in danger. Complaint, ¶712. He also knew and intended that sales representatives would not warn doctors that higher doses put patients at risk. Complaint, ¶¶712-13, 719.

The Complaint gives some specifics as to Gasdia’s involvement. In 2011, as the Sacklers looked for ways to increase sales, Gasdia reported to Richard Sackler that Purdue was instructing its sale representatives to focus on converting "opioid naï ve patients" (those who had never been on opioids or who were on low doses of Vicodin or Percocet) to Purdue opioids, even though he knew that plan posed an increased risk to those patients. Complaint, ¶¶348-49. In 2013, he strategized with other staff on ways to market Purdue opioids directly to insurance companies and managed care formularies in an effort to convince them to cover opioids, using data that the FDA had never approved. Complaint, ¶566. Gasdia wrote scripts used to train Purdue sales representatives, including, for example, a plan to use fake patient profiles to encourage doctors to prescribe Butrans to patients not on opioids. Complaint, ¶707. He tracked his staff’s adherence to sales targets, and placed sales representatives on "performance enhancement plans" if they were not generating enough opioid prescriptions. Complaint, ¶350. Gasdia had a "special interest" in Massachusetts where he had started his career. Complaint, ¶742. He oversaw Purdue’s negotiations with Massachusetts insurers and tracked Massachusetts regulations to ensure a growing market of opioids here. Complaint, ¶750.

In short, Gasdia (according to the Complaint) "worked at the heart of Purdue’s deceptive sales campaign," carrying out the orders of Richard Sacker and other Sackler defendants to promote higher doses of opioids for longer periods of time. Complaint, ¶¶698, 747. Between 2007 and 2014, Purdue paid Gasdia millions of dollars for his efforts. Complaint, ¶752.

DISCUSSION

The Complaint asserts two causes of action against Gasdia: violations of G.L.c. 93A (Count I) and public nuisance (Count II). As to the c. 93A claim, Gasdia argues that G.L.c. 93A, § 4 makes clear that the Attorney General’s authority can be wielded only where there is reason to believe that the defendant "is using or is about to use" an unfair and deceptive business practice. As the Complaint acknowledges, Gasdia stepped down from his position as Purdue’s Vice President of Sales and Marketing in June 2014, and left Purdue entirely in December of that year. Gasdia notes that there is nothing in the Complaint to suggest that he has had any association with the company since then, or that he has any intention of returning. Because he is not currently engaging in the acts on which the Complaint is based, Gasdia argues that the Attorney General has no standing to assert a c. 93A violation against him. Gasdia makes a similar...

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