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Purdue Pharma L.P. v. Combs

Court of Appeals of Kentucky

February 28, 2014

PURDUE PHARMA L.P., INDIVIDUALLY; PURDUE PHARMA L.P., AS SUCCESSOR IN INTEREST TO THE PURDUE PHARMA COMPANY; PURDUE PHARMA INC.; THE PURDUE FREDERICK COMPANY, INC., D/B/A THE PURDUE FREDERICK COMPANY; PURDUE PHARMACEUTICALS, L.P.; AND THE P.F. LABORATORIES, INC. PETITIONERS
v.
HONORABLE STEVEN D. COMBS, JUDGE, PIKE CIRCUIT COURT RESPONDENTANDCOMMONWEALTH OF KENTUCKY, EX REL. JACK CONWAY, ATTORNEY GENERAL REAL PARTY IN INTEREST

AN ORIGINAL ACTION ARISING FROM PIKE CIRCUIT COURT ACTION No. 07-CI-01303.

COUNSEL FOR PETITIONERS: James E. Keller Lexington, Kentucky John M. Famularo Daniel E. Danford Lexington, Kentucky Trevor W. Wells Lexington, Kentucky Pamela T. May Pikeville, Kentucky.

COUNSEL FOR RESPONDENT: No counsel for respondent.

ORAL ARGUMENT FOR PETITIONERS: John M. Famularo Lexington, Kentucky.

COUNSEL FOR REAL PARTY IN INTEREST: Jack Conway Attorney General of Kentucky Sean J. Riley Deputy Attorney General Mitchel T. Denham Robyn R. Bender Asst. Deputy Attorneys General Clay A. Barkley Asst. Attorney General Frankfort, Kentucky Michael E. Brooks, Director Medicaid Fraud and Abuse Control Division Frankfort, Kentucky.

Robyn R. Bender Asst. Deputy Attorneys General ORAL ARGUMENT FOR PETITIONERS: Clay A. Barkley Asst. Attorney General John M. Famularo Frankfort, Kentucky Lexington, Kentucky, C. David Johnstone LeeAnne Applegate S. Travis Mayo Asst. Attorneys General Frankfort, Kentucky Donald L. Smith, Jr. Asst. Attorney General Pikeville, Kentucky.

ORAL ARGUMENT FOR REAL PARTY IN INTEREST: Jack Conway Attorney General Frankfort, Kentucky.

BEFORE: CAPERTON, JONES AND THOMPSON, JUDGES.

OPINION AND ORDER DENYING PETITION FOR WRIT OF PROHIBITION

KELLY THOMPSON, JUDGE.

Petitioners, Purdue Pharma L.P., Individually, Purdue Pharma L.P., as successor in interest to the Purdue Pharma Company, Purdue Pharma Inc., The Purdue Fredrick Company, Inc., d/b/a The Purdue Frederick Company, Purdue Pharmaceuticals, L.P., and The P.F. Laboratories, Inc. (Purdue) filed this petition for writ of prohibition seeking to prohibit the Pike Circuit Court from enforcing an order deeming certain requests for admissions served upon Purdue as admitted.

FACTUAL AND PROCEDURAL HISTORY

On October 4, 2007, the Commonwealth and co-plaintiff Pike County (on behalf of itself and a putative class of all Kentucky counties)[1] filed this action in Pike Circuit Court against Purdue and Abbott Laboratories and Abbott Laboratories, Inc. (Abbott). The Commonwealth alleged Purdue and Abbott's marketing and promotion of OxyContin tablets caused the Commonwealth damages including excessive spending on OxyContin through Medicaid and other Kentucky programs, health care services provided for the diagnosis and treatment of the adverse effects of OxyContin, and law enforcement, educational and social services to combat the abuse and diversion of OxyContin. At the same time, the Commonwealth served Purdue and Abbott with discovery pursuant to the Kentucky Rules of Civil Procedure (CR), including requests for admissions pursuant to CR 36. So the significance of the trial court's order deeming these requests admitted is readily understood, we reiterate those requests most damaging to Purdue's defense as propounded:

ADMISSION NO. 5: That Defendant, acting alone or in concert with other persons or entities, including those named Defendants in this action, misrepresented and/or concealed the true and actual addictive nature of OxyContin, including but not limited to the risk of addiction, actual addiction and other adverse health consequences.
ADMISSION NO. 9: That Defendant promoted and marketed OxyContin to general practitioners and other physicians all of whom Defendant knew had less training ...

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