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A New York state judge has declined to establish a class action on behalf of people who suffered adverse effects from using OxyContin, opting instead to refer the matter to the New York Litigation Coordinating Panel. Five Staten Island residents claimed their use of the powerful prescription painkiller led to health problems including vomiting, blurred vision, paranoia, panic attacks and addiction. The drug, which reportedly has annual sales of $1.8 billion, has been associated with abuse, addiction and severe side effects. It was originally promised as a new generation of pain-relief medication for cancer patients. The decision marks at least the sixth time that a state or federal court has declined to certify a class in OxyContin cases. The reported injuries caused by OxyContin are the product of diverse circumstances that preclude a class action, according to Acting Supreme Court Justice Joseph J. Maltese. “This court finds that a class action certification is not appropriate because of the different reasons and methods by which the drug was prescribed and used,” he ruled in Hurtado v. Purdue Pharma Company, 12648/03. Because the suits share common issues of law and fact, Maltese ordered them “and such other cases in other counties of the New York Supreme Court to be coordinated before one justice” from the Litigation Coordinating Panel. Additional cases include at least one in Manhattan and another in Staten Island, N.Y. The Administrative Board of the Courts established the litigation panel in 2002 to streamline complex multi-party litigation. The panel is composed of four judges, one from each appellate division. Maltese represents the 2nd Department. He based his decision on New York’s restrictive class action statute and recent decisions of other state and federal courts, all of which declined to certify classes in the matter. The plaintiffs’ motion satisfied only three of the state’s five statutory requirements, Maltese said. The class appeared sufficiently numerous, the named plaintiffs seemed to adequately represent the class and a class action looked likely to be the most efficient way to handle the numerous cases. However, the common questions of law and fact did not appear to predominate over individual issues, as required by state law, Maltese wrote. (The less restrictive federal class action rule requires only the existence, not the predominance, of such common questions.) The claims and defenses of the representative party also did not necessarily typify those of the class. The defendants — Purdue Pharma, which makes OxyContin, and Abbott Laboratories, which promotes and sells it — argued that proximate causation must be determined case by case. Individualized issues, the companies argued, included the dosages, the reasons for beginning the treatment and the type of information the doctors supplied the patients. “These are important individual issues and to lump all of those issues together would be inappropriate for all the parties involved,” wrote Maltese. “It appears that individual issues predominate over the common issues of fact. As such, the commonality requirement is not met.” Similarly, the court ruled that the claims of the plaintiffs appeared likely to differ with each case. “[T]he effect of the prescription on each individual class member is more likely than not to be individually determined,” Maltese wrote. “If, for instance, injuries range from sexual dysfunction, to nightmares, to symptoms of withdrawal and social ineptitude, it is difficult to claim there is any ‘typical’ injury.” CASES IN OTHER JURISDICTIONS The court looked to recent decisions by three federal courts and the state courts of Ohio and Indiana. While acknowledging that these decisions did not bind New York courts, Maltese said that “in a world of instant computerized legal research, it would appear to be almost unenlightened to rule on a case of such magnitude, which could affect potentially thousands of people without knowing what other courts have done under similar circumstances, which may be persuasive.” The court had specifically awaited a ruling by the Ohio Supreme Court. In July 2003, the Court of Appeals of Ohio had affirmed the certification of three statewide classes. However, the state Supreme Court reversed the decision on Dec. 15, 2004. “This court agrees with the majority holding of the Ohio Supreme Court which found an abuse of discretion on the part of the [trial judge's] decision which misapplied the commonality requirement,” wrote Maltese. When the cases come before the Litigation Coordinating Panel, they will join at least the two others before New York courts. Eventually, the total could be much greater. “There are hundreds of these cases waiting to be filed,” Maltese said in an interview. An administrative judge will assign the coordinating judge based on such factors as the judge’s familiarity with the litigation. If the case lands in Staten Island, home to six of the seven plaintiffs in current suits, Maltese could be a likely choice. In overseeing the cases until they separate for individual trials, the coordinating judge will maintain broad authority, including the power to establish a central file and a document depository and to appoint a liaison counsel and steering committees.

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