Purdue Pharma has sought to delay a trial that is set to begin May 28 in Oklahoma, citing a “belated tidal wave of documents,” but the move comes amid reports that the opioid manufacturer could soon file for Chapter 11 bankruptcy.
In a case brought by the Oklahoma attorney general, the trial would be the first time a jury would decide whether Purdue was responsible for the opioid addiction crisis. Last week, Purdue filed a motion for continuance based on a massive data dump handed over by the attorney general’s office. On Friday, Attorney General Mike Hunter countered that Purdue’s motion was a ruse that, along with a potential bankruptcy filing, were all part of a “desperate” attempt to avoid trial.
“There is no way—no way—any of these defendants can face a jury,” wrote Hunter and the state’s Oklahoma City attorneys, former federal judge Michael Burrage of Whitten Burrage, and Bradley Beckworth, co-head of Nix Patterson’s complex litigation group. “Defendants know they can’t hide anymore. Now they’re trying to run.”
Purdue, in a reply Wednesday, chastised the “inflammatory rhetoric, speculation, and misleading, irrelevant assertions” raised in the attorney general’s response.
Purdue’s lawyers in the case are Sanford Coats of Crowe & Dunlevy in Oklahoma City and Mark Cheffo, a partner in Dechert’s New York office.
Outside of court, the language on both sides was more tempered.
In an emailed statement, Hunter said, “Our focus over the next several months is on trial preparation and ensuring the facts and evidence in this case will be heard by Oklahoma triers of fact in an Oklahoma courtroom.”
Purdue spokesman Robert Josephson denied that the continuance motion had anything to do with a possible bankruptcy.
“We categorically deny that a failure to win the motion for a continuance will have a determinative effect on the company’s decisions about whether or not to file for bankruptcy,” he wrote. “As previously stated, the company is looking at all of its options, but we have made no decisions, and have not set any timetables.”
On Monday, Reuters reported that Purdue Pharma was exploring bankruptcy to address its growing liabilities over the opioid epidemic. A Chapter 11 filing would halt the lawsuits, folding them into bankruptcy court.
Bankruptcy rumors began infiltrating the Oklahoma trial last month. The case, filed on 2017, alleged that Purdue and two other opioid manufacturers, Johnson & Johnson’s Janssen Pharmaceuticals Inc. and Teva Pharmaceuticals USA, helped create an epidemic over the prescription painkillers by marketing them as a safe and non-additive treatment for chronic pain.
On Feb. 14, Cleveland County District Court Judge Thad Balkman ordered both sides to submit briefs on whether he had the legal authority to sever the claims against all three defendants and consolidate them for trial—a move that Purdue called an “unprecedented procedural tactic” pushed by the attorney general’s office to head off concerns about its imminent bankruptcy.
“Yet Purdue is still here—ready, willing, and eager to prove in this court that the state’s claims are baseless,” Purdue’s lawyers wrote Feb. 22.
Purdue, and the other defendants, in separate motions, supported severing the claims but not consolidating them for trial, which would be premature and prejudicial. In fact, Teva filed a motion for severance Feb. 26, arguing that a trial with all defendants would be unfair. Among other things, the motion says, the case alleges that Purdue—and, more specifically, its private owners, the Sackler family—first created the epidemic when introducing OxyContin in 1996, five years before Teva’s products hit the market.
“The state’s focus on Purdue throughout this case has been marked by extraordinary, inflammatory rhetoric, with the state repeatedly labeling the Purdue defendants ‘liars,’ ‘criminals,’ ‘above the law,’ and just ‘bad company,’” wrote Teva’s attorneys. “Those statements and other evidence and arguments directed at Purdue cannot be attributed to any other party—but will undoubtedly inflame the jury against all defendants before them at trial.”
Neither Teva attorney Robert McCampbell of GableGotwals in Oklahoma City, nor Johnson & Johnson’s lawyer, Benjamin Odom of Odom Sparks & Jones in Norman, Oklahoma, responded to requests for comment.
On Feb. 28, Purdue filed its motion for continuance, and an emergency motion to stay expert deadlines, citing the attorney general’s “belated tidal wave of documents” produced in discovery —specifically, nearly 1.6 million pages of documents, nearly double the volume of the entire case so far. In Wednesday’s reply, Purdue’s lawyers noted much more discovery was missing.
“It is obvious that the state is far behind on its discovery obligations,” they wrote. It is long past time for the state to get going. Defendants cannot be punished for the state’s failure to comply with its basic discovery obligations and court orders compelling such discovery.”
A continuance would delay the trial to Sept. 16, but it still would be the first opioid case to go before jurors. On Jan. 29, U.S. District Judge Dan Polster, who is overseeing multidistrict litigation of more than 1,600 lawsuits by cities and counties, rescheduled the first federal trial to Oct. 21.
“There is no reason to move the trial date,” Hunter wrote. “Defendants’ attempt to do so with this motion is frivolous, desperate, and disingenuous—as is their last-minute request to once again delay their expert disclosures. This court has been clear: we are going to trial on May 28, 2019.”