Chicago Improves Opioid Case With Details About Doctors
By Sindhu Sundar
November 24, 2015
Law360, New York — Chicago’s latest complaint accusing major pharmaceutical companies of downplaying the risks of long-term use of opioid painkillers has a stronger chance of surviving the pleading stage, as attorneys say new details focusing on doctors the drugmakers allegedly worked with to promote the drugs will likely persuade a court to allow the city to press its case.
The city filed a more than 300-page second amended complaint this month to include more detailed allegations about schemes by the individual drugmakers, which includeJohnson & Johnson, Purdue Pharma Inc., Actavis PLC and Endo Health Solutions Inc. Chicago’s original suit had broadly described campaign efforts since the 1990s in which the drugmakers spent “hundreds of millions of dollars” to create a veneer of scientific discourse appearing to support the long-term use of opioids, which have drawn controversy amid regulatory scrutiny of prescription drug abuse and overdoses.
U.S. District Judge Jorge Alonso had slashed the city’s suit in May, finding that although the U.S. Food and Drug Administration‘s oversight of the drugs doesn’t interfere with the court’s ability to determine whether they were deceptively marketed, the city hadn’t pled enough details. Specifically, the court found that the city had not identified any “Chicago doctor or consumer” to whom each defendant made misrepresentation.
More than a third of the city’s amended complaint is devoted to allegations about the conduct of individual defendants, and it attempts to highlight the doctors that the drugmakers allegedly paid to give speeches about the opioids that downplayed the risks of long-term use. The complaint also details findings from interviews with doctors in Chicago who claimed the drugmakers’ sales representatives “routinely omitted any discussion about addiction and overdose death and frequently overstated the benefits of opioids.”
The defendants have already fought back, saying in a filing Friday that the suit still lacks specifics, but attorneys think the amended suit has enough material to live to see another day. The court may be inclined to allow the case to proceed to discovery in order to give the city a chance to bolster its claims rather than cull the suit at this point, they say.
“More often than not, when it seems like it could be a close call, the judge will allow the case to move forward into discovery proceedings,” said Andrew Ittleman of Fuerst Ittleman David & Joseph. “It might not be a perfect way of resolving these issues, but more often than not, especially when your plaintiff is Chicago and the court is the Northern District of Illinois, the district court judge is likely going to allow the city its day in court.”
The city has generally accused the drugmakers of engaging in tactics including funding “seemingly neutral and credible” groups to devise treatment guidelines sent to doctors to encourage them to prescribe the drug for chronic pain.
In its amended complaint, Chicago has attempted to include more detail, claiming, for instance, that sales representatives for J&J unit Janssen Pharmaceuticals Inc. falsely told doctors in the city that its opioid Nucynta was not being abused. It also included details about meals certain doctors in the city had on Janssen’s dime, and the dates of those meetings.
Plaintiffs attorneys in particular believe that such details can help Chicago overcome the strict pleading standards for such injury claims.
“The pleading standards are fairly stringent, so whether you’re a city or a private individual you need to plead with specificity,” said Bill Curtis of the plaintiffs firm Curtis Law Group.
“And I think Chicago’s complaint, which has more than a hundred pages’ worth of factual allegations about marketing materials, and studies, and dates of meetings, is very specific,” he said. “It isn’t just saying all opioid drugmakers did all these bad things; the city broke it into sections for each company, and it was very precise. I’d be very surprised if the judge said this wasn’t enough.”
Once past the initial stages, Chicago would also have the challenge of clearly demonstrating the damages it has suffered, attorneys say. Although its claims are similar to federal government False Claims Act suits over drug marketing, the suit is still relatively unusual, because it has been brought by a city, attorneys say.
While the government directly pays for drug reimbursements through federal health insurance programs such as Medicare and Medicaid, cities often administer such health care programs differently, attorneys say. The city claims it offers coverage for prescription drugs to employees and retirees under health plans that it self-insures.
“It’ll come to an issue of whether Chicago shows that it suffered direct harm,” said Nicholas Harbist of Blank Rome LLP. “I think Chicago’s legal theory is a little more nuanced and novel than the traditional theory that the federal government FCA suits have.”
Purdue is represented by R. Ryan Stoll and Patrick J. Fitzgerald of Skadden Arps Slate Meagher & Flom LLP.
Endo Health Solutions is represented by Peter V. Baugher and Kristen E. Hudson ofSchopf & Weiss LLP.
Actavis PLC is represented by Nicholas M. Marietti of K&L Gates LLP.
The case is City of Chicago v. Purdue Pharma LP et al., case number 1:14-cv-04361, in the U.S. District Court for the Northern District of Illinois.
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