Commonwealth v. Purdue Pharma, L.P., 091719 MASUP, 1884CV01808BLS2

Docket Nº:1884CV01808BLS2
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:September 17, 2019
Court:Superior Court of Massachusetts
 
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COMMONWEALTH of Massachusetts

v.

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

No. 1884CV01808BLS2

Superior Court of Massachusetts, Suffolk

September 17, 2019

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

Janet L. Sanders, Justice of the Superior Court

The Commonwealth commenced 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 current and former Purdue directors, CEOs, and a vice president of sales. All defendants have moved to dismiss the claims against them pursuant to Mass.R.Civ.P. 12(b)(6). This Memorandum concerns only the Motion to Dismiss by Purdue.2 For the following reasons, this Court concludes that it must be DENIED.

BACKGROUND

The Complaint is notable both in its length (274 pages) and its level of detail, including its citation to and quotations from Purdue’s own internal communications. This Court only briefly summarizes those allegations, which are taken as true for purposes of this Motion.

Purdue manufactures prescription opioid medications used for the treatment of chronic pain. The Complaint largely focuses on Purdue’s OxyContin, which is a tablet patients take orally, and which is sold in different dosing strengths. Butrans and Hysingla are Purdue’s other opioid products.[3] Purdue’s opioid formulations include "extended release" or "long acting" doses because they release the active ingredient into a person’s system over time. Other opioids on the market are "immediate release" formulations. Opioids, including Purdue’s products, carry several risks to the user, including physical dependence, addiction, and related withdrawal symptoms. Opioids can also cause respiratory depression, which is life-threatening.

Purdue released OxyContin in 1996. In the years thereafter, opioid-related deaths rose across the nation and in Massachusetts in particular. In 2007, after multiple state and federal investigations, a predecessor corporation and three executives pleaded guilty to illegal misbranding. An agreed statement of facts submitted in connection with that plea stated that Purdue supervisors and employees intentionally deceived doctors about OxyContin’s addictive properties in the previous six years. Also in 2007, Purdue reached a consent judgment with several states, including Massachusetts (the 2007 Judgment). The 2007 Judgment prohibited Purdue from making "any written or oral claim that is false, misleading, or deceptive" in the promotion or marketing of OxyContin. It also required Purdue to establish and follow an abuse and diversion detection program to identify high-prescribing doctors who show signs of inappropriate prescribing, to stop promoting drugs to them, and to report them to authorities.

In the years following the 2007 Judgment, Purdue, despite its promises, did not substantively alter its deceptive and illegal marketing practices. Rather, it continued to downplay its opioids’ propensities for addiction and abuse in its messaging to doctors so as to persuade them to prescribe the opioids at greater frequency, at ever-higher (and more expensive) doses, and for longer treatment durations. Purdue also influenced prescribing to inappropriate patient populations. For example, it promoted opioids for use by geriatric osteoarthritis patients, even though opioids were more dangerous for elderly individuals and studies had not shown opioids to be a more effective treatment for them. According to the Complaint, Purdue knew that its marketing tactics caused more patients to become addicted and substantially increased the likelihood that they would overdose and die. Despite this knowledge, Purdue continued to minimize the dangers associated with the use of its drugs and to make false representations regarding their safety. It did so in order to maximize its profits.

The Complaint goes into extensive detail about Purdue’s marketing tactics. For example, Purdue deployed its sales staff to make frequent in-person visits to doctors’ offices in Massachusetts, targeting doctors who were already suspected of overprescribing. It dispensed money, meals, or other gifts to prescribers, and paid doctors to act as spokespersons for its opioids. Purdue funded programs at Tufts University and Massachusetts General Hospital in order to influence physicians associated with those institutions. Its sales representatives dispensed savings cards, knowing that their use would encourage patients to stay on opioids longer.

The Complaint alleges that, because of Purdue’s unfair and deceptive conduct, the Commonwealth has sustained substantial damage. In particular, the Commonwealth asserts that Purdue’s actions significantly contributed to the opioid epidemic in Massachusetts, which has been the cause of thousands of deaths and non-fatal overdoses. Included within the thousands who have died are 671 people who filled prescriptions for Purdue opioids. Those that have survived their addictions have imposed a heavy burden on the Commonwealth: many cannot work, and they require lengthy and expensive care and treatment, for both themselves and their dependents. The Commonwealth is seeking damages from the defendants to offset the costs of the opioid epidemic, which has been declared a public health emergency in Massachusetts.

DISCUSSION

The standard that this Court applies to the instant motion is well established. Although the complaint must contain more than "labels and conclusions," Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), the ultimately inquiry is whether the plaintiff has alleged facts that are "adequately detailed so as to plausibly suggest an entitlement to relief." Greenleaf Arms Realty Trust, LLC v. New Boston Fund, Inc., 81 Mass.App.Ct. 282, 288 (2012) (reversing lower court’s allowance of Rule 12(b)(6) motion). In ruling on the motion...

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