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Given its bad ink, you’d think the prescription painkiller OxyContin would have prompted a potentially bankrupting wave of lawsuits. So far at least, you’d be wrong. The U.S. Drug Enforcement Administration (DEA) has linked the medicine to 464 overdose deaths in the last two years. Abuse of the drug, particularly in rural areas, has earned it the nickname “hillbilly heroin” and disastrous publicity for the manufacturer, Purdue Pharma. Despite early enthusiasm for suing Purdue, many plaintiffs’ lawyers are steering clear of OxyContin cases. And while there are currently more than 75 suits pending against Purdue nationwide, the company had a string of confidence-building victories in early litigation. “We have not paid a penny in any of these cases, and we have no intention of doing so,” says Howard Udell, Purdue Pharma’s general counsel. That does not mean the company doesn’t face problems in court. Lawyers who have targeted the company say they are working to develop an effective line of attack and have thousands of potential plaintiffs in the wings. More than a dozen class actions have been filed, although most of the suits against Purdue involve claims by individuals that they became OxyContin addicts. Last June, West Virginia Attorney General Darrell V. McGraw Jr. sued Purdue and Abbott Laboratories, which also markets the drug, charging them with violating consumer-protection and antitrust laws and costing the state millions of health care dollars. Among theories in that case is the contention that the marketing of OxyContin constitutes a public nuisance, a theory also attempted in gun suits. SCREENING CASES One of the biggest challenges for plaintiffs’ lawyers is finding credible clients among people who are addicted to OxyContin and who often have a history of drug abuse. Careful screening of cases is critical, plaintiffs’ lawyers say. Stephen D. Annand, a partner in Washington, D.C.’s Cohen, Milstein, Hausfeld & Toll who represents West Virginia and plaintiffs in class actions in Washington and New Jersey, says he avoids clients who obtained OxyContin illegally. He also rejects cases from patients for whom the drug is most appropriate: those with severe, intractable pain that can’t be managed with other drugs. In those cases, plaintiffs’ lawyers concede the use of OxyContin is proper. “We believe the drug has a proper place,” says Annand. “But the total market that they’ve captured is perhaps five times more than they should have been able to capture.” Annand and other plaintiffs’ lawyers claim that Purdue overpromoted the drug, playing up its use by patients with less serious pain and misleading doctors about the risks of addiction. At least some plaintiffs’ lawyers appear to be holding their clients at arms’ length. “I don’t think it’s any secret to anybody that’s been in the case a while, and Your Honor being new in the case, all our clients either are or have been drug addicts,” a plaintiffs’ lawyer told a federal judge in a Kentucky class action. “And what they might tell Your Honor face to face might be rather different than what they might be persuaded to sign out of court for one side or the other.” In that case, Purdue had moved to knock out one of the class representatives after the man’s doctor produced affidavits from himself and the patient, charging that the patient was improperly solicited by one of the class lawyers. The lawyer was the patient’s first cousin. In February, the judge declined to allow the plaintiffs to withdraw their motion for class certification and instead denied it. Foister v. Purdue Pharma, No. 01-268 (E.D. Ky.). James Beck, an expert in products liability defense with Philadelphia’s Pepper Hamilton, says that drug cases often turn on the position of the doctors who prescribed the drug. One who stands behind a decision to choose a particular drug is good news for the manufacturer. One who joins critics of the company can be trouble. OxyContin’s problems include reports of “pill mills” run by doctors who churned out prescriptions, paying little attention to whether patients needed it. A Florida doctor was recently sentenced to 63 years in connection with four OxyContin overdoses. Several doctors are being prosecuted for prescribing it illegally. Purdue has been successful in removing some suits to federal courts, where defendants often have an easier time. In several other cases, the plaintiffs have voluntarily withdrawn class certification motions, removing the threat of huge damages. Approved by the U.S. Food and Drug Administration in 1995, OxyContin is a 12-hour time-release version of oxycodone, a synthetic opioid drug that is similar to morphine. By all accounts, Purdue, a privately held company headquartered in Stamford, Conn., marketed the drug aggressively and with considerable success. Its sales in 2001 were $1.5 billion. Not long after OxyContin went on the market, abusers realized they could defeat the time-release feature by simply crushing it, then swallowing, snorting or injecting it for a heroin-like high. Reports of widespread abuse were first concentrated in the Appalachian region, but have spread. After reviewing autopsy data, the DEA in April reported that OxyContin was likely involved (often with other drugs) in 464 overdose deaths in 2000 and 2001. Purdue has disputed the DEA results and has drawn support from the FDA.

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