Calling it “hillbilly heroin,” Kentucky officials have sued the manufacturer of OxyContin, the painkiller abused most famously by Rush Limbaugh. The lawsuit was filed in Pike County Circuit Court as a class action and seeks unspecified punitive damages and the creation of a court-monitored fund, financed by Purdue Pharma, for educational outreach programs.
Kentucky officials blames OxyContin — the brand name for oxycodone —for hundreds of deaths and say that the abuse of the drug is particularly high in Appalachian states such as Kentucky, Virginia and West Virginia.
This is not the first such lawsuit based on abuse. A product can be defective due to foreseeable abuse as well as both design and warning defects. The lawsuit is reminiscent of a lawsuit many years ago against a glue manufacturer in Minnesota, whose glue was almost exclusively used by kids in Latin America to get high. H.B. Fuller and Company for its shoe glue that was used for sniffing highs. A case brought on behalf of a Guatemalan teenager was dismissed on jurisdictional grounds.
The event prompting the Kentucky lawsuit was clearly the recent guilty plea of three of current or former executives in May to misleading the public about the drug’s risk of addiction. They admitted that the drug was marketed wrongly as less addictive and less subject to abuse than other drugs. They agreed to pay $634.5 million in fines. The company also recently agreed to $19.5 million to 26 states and Washington, D.C., to settle complaints that it encouraged physicians to over prescribe the drug.
Massive funds like the one sought in Kentucky are far more common now than they were only a few decades ago. With the breakthrough cases of Agent Orange by Judge Jack Weinstein, such class actions are becoming routine demands around the country. The company, however, is unlikely to rollover in the Kentucky cases since it would only invite a litigation rush in other states. The drug packaging does warn against addiction, but the jury would have to decide it the warning is sufficient. There can also be design questions and whether addictive elements were necessary for the design. There are also obvious claims of assumption of the risk, though with addictive products this defense can be more problematic. For full story, click here