Purdue Pharma L.P. v. Combs

• Decision Date: 28 February 2014
• Docket Number: No. 2013–CA–001941–OA.,2013–CA–001941–OA.
• Citation: 506 S.W.3d 337
• Parties: PURDUE PHARMA L.P., Individually; Purdue Pharma L.P., as Successor in Interest to the Purdue Pharma Company ; Purdue Pharma Inc.; The Purdue Frederick Company, Inc., d/b/a The Purdue Frederick Company; Purdue Pharmaceuticals, L.P.; and The P.F. Laboratories, Inc., Petitioners v. Honorable Steven D. COMBS, Judge, Pike Circuit Court, Respondent and Commonwealth of Kentucky, ex rel. Jack Conway, Attorney General, Real Party in Interest.
• Court: Kentucky Court of Appeals

506 S.W.3d 337

PURDUE PHARMA L.P., Individually; Purdue Pharma L.P., as Successor in Interest to the Purdue Pharma Company ; Purdue Pharma Inc.; The Purdue Frederick Company, Inc., d/b/a The Purdue Frederick Company; Purdue Pharmaceuticals, L.P.; and The P.F. Laboratories, Inc., Petitioners

v.Honorable Steven D. COMBS, Judge, Pike Circuit Court, RespondentandCommonwealth of Kentucky, ex rel. Jack Conway, Attorney General, Real Party in Interest.

No. 2013–CA–001941–OA.

Court of Appeals of Kentucky.

Feb. 28, 2014.

James E. Keller, John M. Famularo (argued), Daniel E. Danford, Trevor W. Wells, Lexington, KY, Pamela T. May, Pikeville, KY, for petitioners.

No counsel for respondent.

Jack Conway (argued), Attorney General of Kentucky, Sean J. Riley, Deputy Attorney General, Mitchel T. Denham, Robyn R. Bender, Asst. Deputy Attorneys General, Clay A. Barkley, Michael E. Brooks, Director, C. David Johnstone, LeeAnne Applegate, S. Travis Mayo, Asst. Attorneys General, Frankfort, KY Donald L. Smith, Jr., Asst. Attorney General, Pikeville, KY, for Real Party in Interest.

Before CAPERTON, JONES and THOMPSON, Judges.

OPINION AND ORDER DENYING PETITION FOR WRIT OF PROHIBITION

THOMPSON, Judge:

Petitioners, Purdue Pharma L.P., Individually, Purdue Pharma L.P., as successor in interest to the Purdue Pharma Company, Purdue Pharma Inc., The Purdue Fredrick Company, Inc., d/b/a The Purdue Frederick Company, Purdue Pharmaceuticals, L.P., and The P.F. Laboratories, Inc. (Purdue) filed this petition for writ of prohibition seeking to prohibit the Pike Circuit Court from enforcing an order deeming certain requests for admissions served upon Purdue as admitted.

FACTUAL AND PROCEDURAL HISTORY

On October 4, 2007, the Commonwealth and co-plaintiff Pike County (on behalf of itself and a putative class of all Kentucky counties)¹ filed this action in Pike Circuit Court against Purdue and Abbott Laboratories and Abbott Laboratories, Inc. (Abbott). The Commonwealth alleged Purdue and Abbott's marketing and promotion of OxyContin tablets caused the Commonwealth damages including excessive spending on OxyContin through Medicaid and other Kentucky programs, health care services provided for the diagnosis and treatment of the adverse effects of OxyContin, and law enforcement, educational and social services to combat the abuse and diversion of OxyContin. At the same time, the Commonwealth served Purdue and Abbott with discovery pursuant to the Kentucky Rules of Civil Procedure (CR), including requests for admissions pursuant to CR 36. So the significance of the trial court's order deeming these requests admitted is readily understood, we reiterate those requests most damaging to Purdue's defense as propounded:

ADMISSION NO. 5: That Defendant, acting alone or in concert with other persons or entities, including those named Defendants in this action, misrepresented and/or concealed the true and actual addictive nature of OxyContin, including but not limited to the risk of addiction, actual addiction and other adverse health consequences.

ADMISSION NO. 9: That Defendant promoted and marketed OxyContin

to general practitioners and other physicians all of whom Defendant knew had less training and experience in treating chronic pain.

ADMISSION NO. 12: That Defendant knew how to reduce or eliminate the addictive potential of OxyContin.

ADMISSION NO. 16: That Defendant and/or its agents did not warn the general public or practitioners of the true and actual addictive potential of OxyContin.

ADMISSION NO. 17: That the misrepresentations and/or omissions by Defendant caused OxyContin to be excessively over-prescribed.

ADMISSION NO. 18: That the misrepresentations and/or omissions by Defendant caused damage to the Plaintiff, Commonwealth of Kentucky, by causing it to expend excessive amounts of money on OxyContin through state-funded benefits.

ADMISSION NO. 20: That the misrepresentations and/or omissions by Defendant were in violation of state laws.

Purdue and Abbott removed the case to federal court before the answer or discovery responses were due. On October 29, 2007, Purdue filed its answer to the complaint in federal court which included denials to allegations substantively identical to those set forth in the requests for admissions.

For reasons not pertinent to the present issue, the case was not remanded to the Pike Circuit Court until February 8, 2013. On March 29, 2013, the Commonwealth filed a motion to have the requests for admissions served with its complaint almost six years earlier deemed admitted. Three days later, before Purdue received notice of this motion, the trial court entered an order granting the motion and deeming the requests admitted. Realizing the admissions would likely resolve the issue of their liability, Purdue and Abbott immediately filed motions to rescind the order and, on April 12, 2013, just eleven days after learning of the Commonwealth's motion, Purdue filed its responses to the requests for admissions. On April 29, 2013, Purdue filed its motion to withdraw or amend any deemed admissions pursuant to CR 36.02. Abbott filed a similar motion. Following a hearing and briefing, without making specific findings of fact or conclusions of law, and for reasons not otherwise stated, the trial court granted Abbott's motion but denied Purdue's motion. Purdue filed this petition for a writ of prohibition.

STANDARD TO DETERMINE WHETHER A WRIT IS PROPER

Our Supreme Court has looked upon writs of prohibition and mandamus with disfavor. Kentucky courts "have always been cautious and conservative both in entertaining petitions for and in granting such relief." Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961). The reason for the reluctance to grant a writ is founded on the very nature of the judicial process.

This careful approach is necessary to prevent short-circuiting normal appeal procedure and to limit so far as possible interference with the proper and efficient operation of our circuit and other courts. If this avenue of relief were open to all who considered themselves aggrieved by an interlocutory court order, we would face an impossible burden of nonappellate matters.

Id. Our Supreme Court has sternly cautioned: "[T]he specter of injustice always hovers over writ proceedings, which explains why courts of this Commonwealth are—and should be—loath to grant the extraordinary writs unless absolutely necessary." Cox v. Braden, 266 S.W.3d 792, 795 (Ky.2008).

Consequently, strict requirements have been set forth to establish entitlement to a writ. "[O]nly after determining that the prerequisites exist will the court decide whether an error occurred for which a writ should issue." Hoskins v. Maricle, 150 S.W.3d 1, 18 (Ky.2004). Petitioners must "satisfy one of two tests to determine whether the remedy of a writ is even available." Edwards v. Hickman, 237 S.W.3d 183, 188 (Ky.2007).

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins, 150 S.W.3d at 10. "The second class of writs includes a subset for ‘certain special cases' where ‘a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.’ "

Edwards, 237 S.W.3d at 188 (quoting Bender, 343 S.W.2d at 801 ). The exception is limited and applies only "where the action for which the writ is sought would blatantly violate the law, for example, by breaching a tightly guarded privilege or by contradicting the clear requirements of a civil rule." Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610, 617 (Ky.2005). This "exception allows a petitioner to avoid only the requirement of great and irreparable injury, not the requirement of lack of an adequate remedy by appeal." Id.

In this proceeding, the Pike Circuit Court's jurisdiction is conceded and, therefore, we need only address the second class of writs. "Lack of an adequate remedy by appeal is an absolute prerequisite to the issuance of a writ under this second category." Id. at 615. Logically, however, "no adequate remedy by appeal" cannot mean merely the right to appeal. If that were true, the writ procedure would be rendered meaningless because once a final and appealable order is issued, virtually every case may be appealed. See Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court[.]"). Therefore, in determining whether an appeal is an adequate remedy "it may be necessary to examine the injurious consequences." PremierTox 2.0 v. Miniard, 407 S.W.3d 542, 548 (Ky.2013) (citations omitted).

The fact a trial court is proceeding erroneously is not an injurious consequence sufficient to justify a writ. We need to only cite a few examples to demonstrate the point: Commonwealth, Energy & Env't Cabinet v. Shepherd, 366 S.W.3d 1, 7 (Ky.2012) (improper intervention can be corrected on appeal); St. Clair v. Castlen, 381 S.W.3d 306, 308–09 (Ky.2012) (any error in requiring a retrial in violation of double jeopardy can be corrected on appeal); State Farm Ins. Co. v. Edwards, 339 S.W.3d 456, 460 (Ky.2011) (improper referral to a master commissioner and resulting fee could be corrected on appeal); Mahoney v. McDonald–Burkman, 320 S.W.3d 75, 78 (Ky.2010) (whether trial court erred by allowing depositions to be taken from witnesses withdrawn from the witness list could be adequately addressed on appeal); Estate of Cline v. Weddle, 250 S.W.3d 330, 335 (Ky.2008) (denial of motion for consolidation and leave to amend can be corrected on appeal.); ...