In three weeks, a West Virginia judge will take up a request to unseal court documents that include details about OxyContin-maker Purdue Pharma’s deceptive sales practices.
The contents of the entire court file have remained secret for two decades.
Now, HBO, The Washington Post and a documentary film production company are asking Putnam County Circuit Judge Philip Stowers to unseal court records from a 2001 class-action lawsuit that accused Purdue Pharma of failing to supervise the use of the prescription painkiller OxyContin. The lawsuit was settled in 2007, but the terms of the deal weren’t disclosed.
Near the start of the litigation, the two sides agreed to a “protective order” that would allow Purdue Pharma to keep the court records under wraps.
HBO, the Post and PK Films — represented by West Virginia University law professors Pat McGinley and Suzanne Weise, along with Charleston attorney Chris Smith — argued that “the public interest in disclosure of Purdue’s aggressive and unlawful opioid marketing practices substantially outweighs continuing secrecy.”
“Concealment of its unlawful practices allowed Purdue’s profits to soar to billions of dollars, while the opioid epidemic took thousands of American lives and addicted hundreds of thousands,” McGinley told the judge in the motion.
McGinley and Weise previously worked with the Charleston Gazette-Mail, HD Media and a Washington Post lawyer to force disclosure of a massive database of pain pill shipments to pharmacies across America.
Stowers has scheduled a hearing for Jan. 29.
The 2001 lawsuit alleged Purdue “encouraged widespread use of OxyContin for off-label uses and doses, while misleading [patients] about the safety and effectiveness of the drug,” according to a summary of the case after it briefly was transferred to federal court.
The opioid manufacturer also allegedly enlisted doctors and others “to mislead [patients] to purchase and take the drug, while withholding information about its dangers, particularly its addictiveness,” the summary stated.
West Virginia has the highest drug overdose death rate in the nation, and overdoses have spiked during the COVID-19 pandemic.
HBO and the Post are seeking documents, videos and audio recordings that Purdue Pharma has kept under seal in the Putnam case from beginning to end.
In 2019, Purdue filed for bankruptcy in New York, just days after agreeing to a tentative settlement with states, counties, cities and towns that had filed lawsuits against the drugmaker.
In November, a federal judge approved an $8.3 billion settlement proposal. The agreement, which hasn’t been finalized, mandates Purdue can no longer operate as a privately-owned profit-making business.
Later that month, the company pleaded guilty to three felonies, admitting it sold OxyContin to health care providers, while knowing the powerful — and potentially deadly — painkiller was being diverted to drug abusers. Members of the wealthy Sackler family, owners of Purdue, agreed to pay a $250 million fine to the federal government and divest from the company. The Sacklers haven’t faced criminal charges.
McGinley argued that Purdue Pharma’s secrecy deal in Putnam County is meaningless because the company pleaded guilty to criminal charges and the firm is being shut down and restructured as a “public benefit trust” that would use any profits to provide free or low-cost opioid addiction treatment and overdose-reversing drugs.
In recent years, judges have unsealed court records that Purdue had fought to shield from the public.
In 2016, a McDowell County judge opened court documents in a lawsuit that former West Virginia Attorney General Darrell McGraw had filed against Purdue Pharma some 15 years earlier. The company agreed to pay the state $10 million to settle the case in 2004. A Boston-based media outlet had asked the judge to release the files.
“These court-sanctioned protective orders shielded Purdue’s unlawful conduct, allowing it to continue marketing its opioid medications for almost 20 years,” McGinley wrote in the Dec. 17 motion. “The records…Purdue designated long ago as confidential competitive business records have no current or future relevance.”
In a statement emailed to Mountain State Spotlight, Purdue Pharma said it has already made available in bankruptcy court “tens of millions of documents, including thousands of privileged documents relating to its shareholders, further displaying the company’s cooperation and transparency in these proceedings.”
The company added: “We continue to act with this extraordinary level of transparency because our ultimate goal is to achieve a global settlement that would deliver more than $10 billion in value, including 100% of Purdue’s assets, to address the opioid crisis. Our proposed settlement structure would provide needed funds, as well as millions of doses of lifesaving opioid addiction treatment and overdose reversal medicines, to states, local communities and tribes to help abate the opioid crisis.”
West Virginia University law professor Suzanne Weise is also representing HBO, PK Films and The Washington Post. Her name was inadvertently left out of the initial version of this story.