Wednesday, August 13, 2003

Chesley aims to combine lawsuits

He represents OxyContin users claiming harm

By Jane Prendergast
The Cincinnati Enquirer

Cincinnati attorney Stan Chesley, famous for turning individual cases into broad lawsuits representing thousands of people, is fighting to create a class-action suit covering four states over the prescription painkiller OxyContin.

Chesley and another lawyer in his firm, Louise Roselle, argued Tuesday in federal court that their case against the drug's manufacturer, Purdue Pharma LP, should be designated a class action for a host of reasons, including the large number of potential victims.

The lawyers have submitted to U.S. District Judge Arthur Spiegel a database of 300 people who reported adverse experiences with OxyContin to the U.S. Food and Drug Administration.

It's the second OxyContin case in which Chesley has asked for the class-action designation. He got it last month in a Butler County case, but Purdue Pharma is appealing. That was in state court, and a class action there could cover all Ohioans.

The federal request would cover all patients in Ohio, Kentucky, Indiana and West Virginia. If it's granted, Chesley said he would re-evaluate the Ohio case.

The painkiller, legally prescribed to those who are terminally ill or in intractable pain, has become widely abused. Chesley's suit would represent those who allege they were harmed as a result of the legitimate use of the drug.

In oral arguments before Spiegel Tuesday, lawyers for Purdue Pharma questioned the legitimacy of some of the people on the list of adverse effects, saying some have histories of substance abuse, some took the drug incorrectly and others were doctor shoppers - meaning they abused OxyContin by getting multiple prescriptions from different doctors.

Those things make their claims inaccurate and make them not representative of the class, said Purdue Pharma lawyer Dan Buckley.

Just last week, the company announced that seven more lawsuits against it had been dismissed, bringing the total to 36. Purdue Pharma has paid nothing in any of the dismissed cases. In some, the plaintiffs were not injured as they first claimed, the company said. In others, those suing had developed substance abuse disorders several years before they used OxyContin.

No jury has found "an actual, honest-to-God problem with this medicine,'' said David Cupps, another lawyer for Purdue Pharma.

Spiegel said he would consider the lawyers' arguments and make a decision later.

The judge asked if Chesley's request for the class designation wasn't simply an effort to do an end-run around a recent Kentucky federal court's rejection of a different request for class-action status. Chesley insisted it wasn't, saying giving the class status will allow the cases to move through the court more quickly and will give others who might not have money to hire their own lawyers better access to legal help.

Lawyers for Abbott Laboratories want out of the case. All their company did, they said, was market the drug for Purdue, its maker. .

Purdue officials worry all the legal wrangling, plus the publicity it generates, confuses patients who need the drug.

Pamela Bennett, a nurse who works for the Connecticut company, said she reminds users OxyContin is approved by the FDA and should be taken as directed.

She added that dependence on OxyContin - one of the things Chesley and Roselle repeatedly said was a reason for the class action - is expected, as it is of many similar drugs. Bennett argued that dependence is not addiction.


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