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Federal Court Denies Class Certification in Kentucky OxyContin Litigation

By Lindsay F. Wiley [Bio]

April 8, 2002 - OxyContin addicts seeking to maintain a class action lawsuit against the drug's manufacturer were denied class certification by Judge Danny C. Reeves of the United States District Court of the Eastern District of Kentucky on February 25, 2002.

In Foister v. Purdue Pharma L.P. (E.D. Ky., No. 01-268-DCR, 2/26/02) the court denied the plaintiffs' motion for class certification, which would have allowed them to press suit on behalf of "all persons who have been harmed by the addictive nature of OxyContin." The judge also denied certification for a class limited to those plaintiffs who received OxyContin through written prescriptions in Kentucky.

The Federal Rules require that plaintiffs must establish:

• that the proposed class is so numerous that joinder of all members individually is impractical;
• that the action involves questions of law or fact common to the class;
• that the claims of the class representatives are typical of those of the class generally; and
• that the persons representing the class are able to protect fairly and adequately the interests of all members of the class.

Judge Reeves found that the plaintiffs, who relied on sales figures for OxyContin, failed to show that the proposed class is so numerous that joinder of all members was impracticable because "sales volume alone will not justify a finding of numerosity. The judge explained that the number of prescriptions was not at issue. Rather, the issue was the number of people allegedly harmed by addiction to OxyContin caused by the defendants' improper actions or inactions.

Judge Reeves also found that because each plaintiff would be required to testify to issues of reliance, causation, and damages, the plaintiffs failed to establish common questions of law and fact.

Furthermore, the plaintiffs failed to establish typicality because of differences between the representatives' claims and those of the proposed class members regarding the dosage of the drug prescribed, the duration of drug use, the purpose for which it was prescribed, and the individual circumstances surrounding each prescription, including each class member's understanding of the drug's effects and the extent of harm caused.

Finally, Judge Reeves found that the plaintiffs failed to establish adequate representation: "The proposed class contains members who obtained OxyContin illegally and take different prescription strengths. Notwithstanding the defenses available to these different factual situations, at a minimum, this amounts to different injuries and interests among Plaintiffs."

Howard R. Udell, Executive Vice President and General Counsel of Purdue Pharma, said that the company expects that Judge Reeves's opinion "will be an important precedent for other judges reviewing similar class action allegations in the future."

"On behalf of all innocent victims of pain, I am deeply gratified by this ruling," said Paul Goldenheim, Purdue's Executive Vice President for Worldwide Research & Development and Senior Physician. "Lawsuits such as this can interfere with the doctor-patient relationship to the extent that innocent pain sufferers are deprived of necessary medical care."

In an earlier ruling denying the plaintiffs' motion for a preliminary injunction and temporary restraining order, another federal judge, Jennifer B. Coffman, said: "The plaintiffs have failed to produce any evidence showing that the defendants' marketing, promotional, or distribution practices have evern caused even one tablet of OxyContin to be inappropriately prescribed or diverted." Judges have dismissed similar lawsuits against the Purdue Pharma in Mississippi, North Carolina, and Maine.