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Federal judge dismisses much of Chicago suit vs. drugmakers over misleading marketing of Oxycontin, other opioid painkillers

By Jonathan Bilyk | May 13, 2015

Several companies who make popular prescription pain killing drugs, including Actavis and Johnson & Johnson, have secured wins in their fight to forestall a lawsuit brought by the city of Chicago, alleging they fraudulently marketed their drugs in the last few decades, leading doctors to prescribe the drugs and compel the city, as its workers’ health insurer, to pay for them when it otherwise should not have.

On May 8, U.S. District Judge Jorge Alonso dismissed many of the city’s counts against a host of drugmakers, including Johnson & Johnson’s Janssen Pharmaceuticals; Teva Pharmaceuticals; Endo Health Solutions; and Actavis Pharmaceuticals.

The judge, however, allowed the city to continue its action over its allegations of misleading marketing against the Stamford, Conn.-based Purdue Pharma companies.

The decision comes as the latest step in litigation introduced by the city last June against the drugmakers.

At that time, the city asserted in a 121-page complaint the companies misled doctors and consumers about the health risks of particular, and now popular, opioid pain killing medications, distributed under brand and generic names like OxyContin, Dilaudid, Duragesic and Percocet. They noted the drugmakers did so through a misleading marketing campaign utilizing “a network of front groups” publishing supposedly neutral articles and other materials promoting the use of these drugs.

The city also accused the companies of “promoting a small circle of doctors who favored treating chronic pain with opioids as experts on opioid use,” placing these “key opinion leaders” on various influential boards and committees and In return, these “key opinion leaders” received “money, prestige, recognition, research funding and publishing opportunities, which allowed them to exert even more influence in the medical community.”

Further, the city alleged the companies targeted doctors through “continuing medical education programs,” while also marketing the drugs to patient populations, including elderly patients and those on workers compensation benefits, among others.

In response, the companies mounted a number of legal defenses, including arguing the federal Food and Drug Administration, and not the city, held jurisdiction in this case.

Alonso, however, rejected that argument, saying the question in the case does not revolve around whether the drugs should have been prescribed, but rather “how the drugs were marketed.”

But Alonso said many of the city’s allegations regarding that alleged misleading marketing are not specific enough to allow most of the counts in the city’s case to move forward.

In most cases, the judge said, the city’s complaint does not “explain what editorial control” the pharmaceutical companies exerted “over materials they allegedly sponsored or funded,” nor does it allege the drugmakers “distributed the educational materials or advertisements to Chicago doctors or consumers,” nor identify particular doctors to whom the city has alleged the misleading marketing was targeted.

On that reasoning, the judge dismissed the counts dealing with deceptive marketing against Janssen, Johnson & Johnson, Endo and Actavis. The judge further allowed Teva to withdraw from the litigation, as he ruled the city had not demonstrated enough connections between Teva and doctors and patients in Chicago to allow the litigation to go forward.

Alonso, however, said the allegations against the Purdue Pharma companies, which make drugs like OxyContin and Dilaudid, differ enough from those against the other companies to allow the actions against Purdue to continue.

“Though most of these allegations suffer from the same flaws as those leveled against the other entities, the allegations that, starting in 2005 and continuing to the present, the Purdue entities made misstatements about opioids on their own websites with the intention that Chicago doctors and consumers rely on those misrepresentations are sufficient to state claims against the Purdue entities,” the judge wrote.

The judge also dismissed the city’s fraud counts against all the drugmakers.

“What the city does not allege, however, is the identities of doctors who, as a result of one or more of defendants’ alleged misrepresentations, prescribed opioids for chronic pain to city-insured patient or workers’ compensation recipient whose claim for that prescription the city paid, or any other detail about such claims,” Alonso wrote.

He granted the city 30 days to amend their complaints to avoid dismissal with prejudice.

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