Oxycodone opioids prescription pills Credit: Steve Heap/Shutterstock.com

A judge in Essex County has dismissed New Jersey’s public nuisance claim against Purdue Pharma over its marketing of opioid drug Oxycontin, and ruled several other claims are limited by statute of limitations.

The ruling, issued Oct. 2, leaves intact the state’s claims that Purdue Pharma violated New Jersey’s Consumer Fraud Act by making false or misleading statements and engaged in unconscionable practices, and that it violated the state’s False Claims Act by inducing prescribers to write medically unnecessary prescriptions that the state paid for.

New Jersey sued Purdue Pharma in October 2017 claiming it created a public nuisance by shifting its marketing focus for Oxycontin from acute and end-of-life care to chronic conditions such as arthritis, migraines and back pain. The company targeted the elderly and people who are “opioid-naive,” the state asserted.

The state also claimed the company concealed the harms of long-term opioid use and the prevalence of addiction and overdoses among users. The suit brought claims under the state CFA and FCA, and sought restitution and civil penalties.

The state claimed Purdue Pharma created a public nuisance with its false and misleading information about the risks and benefits of opioids. That resulted in increased health care costs for individuals, families, employers and the state; lost employee productivity; the creation and maintenance of a criminal market for opioids; and greater demands on emergency services and law enforcement. The state sought an order directing Purdue Pharma to abate the nuisance, and damages to redress the consequences of the nuisance.

But Superior Court Judge Thomas Moore ruled the state’s nuisance claim was subsumed by the state Product Liability Act because it falls within the definition of a products liability suit. The state alleged that Purdue Pharma’s marketing did not adequately portray the benefits and risks of its drug, but a claim of an inadequate warning or instruction to a consumer or physician is covered under the PLA, Moore said.

New Jersey relied on James v. Arms Tech, a 2003 Appellate Division ruling, for the proposition that the proper standard for causation in a public nuisance claim is whether the defendant’s conduct is a substantial factor in creating the nuisance, even if there are other intervening causes.

But Moore said that case was distinguishable from the present circumstances. In James, the city of Newark accused gunmakers of encouraging an illegal firearms market by failing to adequately supervise distribution of their products. But Moore found the claims in James, unlike the present case, did not involve misrepresentation or omissions regarding the dangers of the product at issue.

The judge likened the present case to In re Lead Paint Litigation, a 2007 ruling from the New Jersey Supreme Court. In that case, by a 4-2 margin, the justices found no basis for a cause of action by public entities against paint manufacturers under the common-law tort of public nuisance. The justices said the plaintiffs’ complaints sought damages, rather than abatement, placing them outside the scope of remedies available to public-entity plaintiffs.

Moore also ruled that all alleged acts or omissions by Purdue Pharma before Oct. 31, 2007, are time-barred under a 10-year statute of limitations for civil actions in New Jersey. He rejected the state’s claim that the statute is tolled anew for each failure to correct a prior misrepresentation. And Moore said Purdue Pharma’s liability under the FCA is time-barred for actions taken before March 13, 2008, the date the state FCA took effect.

Moore denied Purdue Pharma’s bid to dismiss the state’s FCA claims. Purdue argued the learned intermediary doctrine breaks any causal connection because information it provides to physicians discharges its duty to warn the drug’s ultimate user. Moore cited the state’s allegation that Purdue Pharma misrepresented the benefits and risks of its drug, making misrepresentations that were inconsistent with the warnings on its FDA-approved labeling. If these allegations are true, the warning to health care providers would not have been adequate, Moore said.

Stephen Matthews of DLA Piper in Short Hills represented Purdue Pharma. Deputy Attorneys General Patricia Schiripo and Jesse Sierant represented the state.

Robert Josephson, a spokesman for Purdue Pharma, said in a statement, “We are pleased with the Court’s decision to grant both our motion to dismiss New Jersey’s public nuisance claim, and its recognition that many of the State’s remaining claims are subject to the statute of limitations. It is also important to note that while the Court allowed certain claims to move forward past the pleading stage, the court made it clear that it was not endorsing the merits of the State’s case. Rather, at this stage of the proceeding, the Court is required by law to accept the State’s allegations as true. Purdue vigorously denies these allegations and we look forward to the opportunity to present our substantial defenses.”

A spokesman for the Attorney General’s Office, Lee Moore, said in a statement, “New Jersey is pleased that the Court has rejected most of Purdue’s arguments in its motion to dismiss, and will allow the State’s case to go forward. The State will continue to vigorously pursue its case.”