By Janice Morse
The Cincinnati Enquirer
MIDDLETOWN - A potentially huge class-action lawsuit against the makers and marketers of OxyContin, a powerful prescription painkiller that has become widely abused, has cleared another legal hurdle.
The Ohio 12th District Court of Appeals here on Monday ruled that a Butler County case may proceed as a class action, potentially representing all Ohioans who were harmed as a result of legitimate prescriptions for the drug.
More than 1 million prescriptions for OxyContin were filled in Ohio retail pharmacies between June 1998 and December 2001, the court noted, showing how impractical it would be for individuals to sue.
Amid a nationwide sea of litigation involving the powerful painkiller, this case has advanced further than any of its type, spokesmen for both sides agree.
"It's a landmark decision. It's the first in the country certifying a class against both the manufacturer and the corporation that marketed this product, to the detriment of a tremendous number of people," said Stan Chesley, the Cincinnati class-action attorney who filed the suit. "OxyContin is one of the most serious drug problems that we have. ...We want a judge and a jury to determine this case."
But Monday's decision doesn't mean that the Butler County case, filed in 2001, is nearing a resolution.
Tim Bannon, a spokesman for Purdue Pharma LP, the Connecticut-based maker of OxyContin, said an appeal is planned. He also said the ruling addresses only the suit's class-action status, not the merits of its allegations. "We remain confident that we will eventually prevail on the merits," Bannon said.
Chesley asked: "If there is no liability, then why are they fighting us so hard?"
Scott J. Frederick, a Hamilton lawyer working with Chesley, said the proceedings have gone this far largely because an 18-month battle yielded more than 80 boxes of documents from the defendants. Those documents, Frederick said, support contentions that Purdue produced a drug that lacked available, inexpensive safeguards against abuse - and Purdue hired another company that marketed it irresponsibly.
"We have documents and evidence that no other group has," Frederick said. "It is the most prolific advertising and marketing campaign ever set forth for a Schedule II narcotic. They marketed these pills like they were M&M's to doctors. They tried to get these doctors to prescribe this drug like it was Tylenol for people with aches and pains."
Frederick said the drug is two and a half times as potent as morphine and it is highly addictive - information that was not provided to many physicians who were encouraged to prescribe it.
The drug is targeted toward people who are terminally ill or intractable pain, such as cancer patients.
Bannon pointed out that package leaflets warn of the potential for addiction.
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