Plaintiff Says Prescription Hooked Him

OXYCONTIN ADDICTIVE EVEN WITH LEGAL USE, LAWSUITS NOW CLAIM

The legal arguments may focus on whether Purdue Pharma provided adequate
warnings about a drug that has an abuse liability similar to morphine.

Charles Brummett admits being a drug addict, but not a junkie.

The difference, he said, is that he got hooked on OxyContin by using the
potent painkiller exactly the way a doctor prescribed it - not by snorting
or injecting the drug the way some law-breaking partier might.

Brummett, a masonry contractor from Lee County, began taking OxyContin in
1998 for a bad back so he could keep working in a profession where aches
and pains are part of the job description.

"I was not looking to get high when I got into this mess," he said. "I was
looking to be able to go to work and do my job."

After going from 20- to 160-mg doses a day, it was all he could do to
overcome the addiction. "I met the devil then. It was the worst experience
of my life," he said.

Still hobbled by back pain and the lingering ache of withdrawal, Brummett
can no longer go to work.

About all the 48-year-old can do is go to court, where a growing number of
OxyContin addicts are blaming the drug's manufacturer, Purdue Pharma, for
pain and suffering caused by the prescription painkiller.

The company has been named in at least 14 lawsuits in five states. It faces
claims for damages far in excess of the millions of dollars in sales that
OxyContin has generated since it was introduced in 1996.

One of the lawsuits, filed in Lee County Circuit Court, was brought by
Emmitt Yeary, an Abingdon attorney who said Brummett is likely to be part
of another suit yet to be filed.

Lawsuits like the one filed by Yeary have interjected a new twist into the
controversy over OxyContin - the assertion that large numbers of people are
becoming addicted to OxyContin without abusing the drug.

Some of the plaintiffs say they became addicted through legitimate
prescriptions. Others admit using the drug illegally. Either way, Yeary's
lawsuit claims, Purdue Pharma should be held responsible because it failed
to adequately warn potential users of the drug's addictive side.

"Corporate drug lord would be a very apt term for Purdue Pharma," Yeary
said. "I think they have irresponsibly manufactured, produced and
distributed a monster drug that they knew or should have known was going to
be highly addictive and would enslave people to its use."

Purdue Pharma has called such claims "completely baseless." It has vowed to
fight the lawsuits in court while continuing to provide OxyContin to people
who need it and trying to keep it away from those who do not.

With reports of OxyContin abuse spreading across the country, it was only a
matter of time before lawyers got involved.

A recent conference for the Association of Trial Lawyers in America was
abuzz with talk of OxyContin litigation, according to Tom Harrison,
publisher of Lawyers Weekly USA.

"The plaintiffs' bar smells blood in the water," Harrison said. "There's
certainly a high degree of interest among the plaintiffs' bar." "Whether
they will succeed is another question."

How the cases fare in court may hinge as much on the plaintiffs' conduct as
Purdue Pharma's.

In a response to the lawsuits, Purdue Pharma maintained that any misuse of
OxyContin by the plaintiffs would bar them from collecting damages under
the general legal doctrine that someone cannot sue for an injury caused by
their own illegal conduct.

"It is illegal to have a Schedule II drug or to use it unless prescribed by
a physician," said William Eskridge, an Abingdon attorney who represents
the company. "And it is absolutely illegal to grind it up and snort it or
inject it."

But according to Yeary, some of the people who abuse OxyContin do so under
the burden of an addiction that began with legitimate use. Under those
circumstances, he said, "they were not responsible for their actions. The
demon had taken over their bodies."

Under product liability law, a manufacturer has a duty to make a product
that is not just reasonably safe for its intended use, but also for any
foreseeable misuse, according to Dale Rubin, a law professor at the
Appalachian School of Law in Grundy.

Arguments that abuse of OxyContin was foreseeable could be bolstered by two
factors, Rubin said: The fact that the drug contains high doses of
oxycodone - a potent narcotic derived from opium - and the general
knowledge that abuse of prescription drugs has been occurring for years.
"That is a common thing that every drug company is aware of," Rubin said.
"I'm sure they would have known it was a possibility. It is subject to
abuse, otherwise they'd sell it like aspirin."

But does foreseeable use include illegal use? Purdue Pharma argues it does not.

When addicts crush up OxyContin pills and snort the powder, Eskridge said,
"I don't think that allows room for a foreseeable misuse of a product any
more than Smith & Wesson would be liable for the foreseeable misuse of its
handgun by a person who committed suicide."

For people like Brummett, who say they used OxyContin as the manufacturer
intended, legal arguments may focus on whether Purdue Pharma provided
adequate warnings about a drug that has an abuse liability similar to morphine.

The company has been accused in lawsuits of not just downplaying the drug's
risks, but also engaging in excessive marketing to physicians and
pharmacists as sales of OxyContin soared last year to more than $1 billion.

The Lee County pleading, filed on behalf of five people who say they were
harmed by the drug in a variety of ways, claims that Purdue Pharma
"continues to make false and fraudulent misrepresentations because their
appetite for significant future profits far outweighs their concern for the
health and safety of Virginians."

But it may be that the company had no legal obligation to warn consumers
about OxyContin because of the so-called learned intermediary doctrine.
Under that rule, pharmaceutical companies must provide warnings only to
doctors, the "learned intermediaries," who then must decide if the drug is
appropriate for individual patients.

"That's the first thing I think they [the plaintiffs] will be hit with,"
said Richard Merrill, a law professor at the University of Virginia who
once served as counsel to the Food and Drug Administration. "The
manufacturer will say: 'Our duty stops with warning the doctor.'"

And the fact that the FDA approved OxyContin in 1995 may make it difficult
for the plaintiffs to portray it as an unreasonably dangerous drug when
used as intended. "I doubt there is a Virginia case that will say the jury
is entitled to, in effect, second-guess the FDA," Merrill said.

However, the FDA strengthened the warning on OxyContin's package insert
last month, something Yeary says bolsters his case.

David Haddox, senior medical director of Purdue Pharma, said that while a
legitimate patient might become addicted to OxyContin, such cases are
"extremely rare."

Company officials are skeptical of claims like the one made by A.F.
McCaulley, another of Yeary's clients who said he became addicted after
taking just one OxyContin pill for a sore shoulder.

"I suspect that once we get the records there will be more to talk about as
to whether these patients are addicted to OxyContin at all, and under what
circumstances they obtained the drug," Eskridge said.

But if allegations like the ones made by Brummett are proved in court, then
he will have a question to put to Purdue Pharma:

"I have to wonder, is the good that this is doing worth the misery that
it's caused?" Brummett said. "I've seen both sides ..."