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Deborah Fisher: Purdue Pharma and the opioid lawsuit seal

Deborah Fisher • Updated May 22, 2018 at 12:00 PM

The lawsuit by the state of Tennessee against Purdue Pharma in a Knoxville Circuit Court last week was filed under “temporary” seal to allow the company time to seek a protective order to keep it from the public’s eye.

Will the company be successful?

Tennessee is not the only state suing the OxyContin maker. Purdue Pharma faces 22 state lawsuits to date that, similar to this one, allege the company misrepresented the drug’s risks, broke consumer protection laws and helped cause an expensive public health crisis now being shouldered by taxpayers. It also is facing hundreds of other civil suits.

Attorney General Herbert Slatery filed the lawsuit under a 10-day temporary seal to allow Purdue Pharma time to file a protective order. But the state also argues in an accompanying memorandum that the judge should not allow the 270-page lawsuit, which contains “detailed factual allegations concerning the defendant’s conduct” to remain under seal past the 10 days.

Slatery said the lawsuit “against one of the largest branded manufacturers of opioids” is “one of the ways the state seeks to address the opioid epidemic – one of the most significant public health crises in the state’s history.”

“The state believes its complaint should be public because there is no compelling reason to withhold it from the public. A time period beyond ten days is not justified because the state is a public litigant, the complaint involves a matter of immense public concern, and the defendant in unlikely to show specific harm as a result from disclosure of the complaint.”

The lawsuit “contains references to documents and information that Purdue Pharma asserts contain highly confidential, proprietary, or trade secret information,” the memorandum said.

Purdue has sought, sometimes successfully, to convince judges to keep information filed in courts confidential. The Los Angeles Times managed to get a hold of documents under court seal anyway, and wrote about what was in them in a story a year ago, “‘You want a description of hell?’ Oxycontin’s 12-hour problem.”

It’s doubtful Purdue Pharma will pass on a fight to keep any evidence gathered by the state confidential. They have fought this battle in other courts. Just last week, a Kentucky judge unsealed records of that state’s lawsuit against Purdue Pharma, but said he would delay his order if Purdue Pharma decided to appeal his decision.

The Tennessee case is set to be heard by Knox County circuit court Judge Kristi Davis.

Deborah Fisher is executive director of Tennessee Coalition for Open Government.

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