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Opioid makers ask Suffolk judge to dismiss municipalities’ suits

State Supreme Court Justice Jerry Garguilo, seen on

State Supreme Court Justice Jerry Garguilo, seen on Dec. 9, 2015, said Monday he will issue at a later date a decision on lawsuits against prescription painkiller manufacturers and distributors. Photo Credit: Randee Daddona

Lawyers for manufacturers and distributors of prescription painkillers on Monday asked a Suffolk judge to dismiss lawsuits that alleged the businesses fueled the opioid epidemic through a fraudulent marketing campaign that misrepresented the drugs’ safety and effectiveness.

The defendants, including Purdue Pharma, manufacturer of Oxycontin, argued that they can’t be held liable for selling a legal product that is regulated and approved by the Food and Drug Administration, a federal agency charged with protecting public health.

“The FDA has approved the ... opioids at issue in this case as safe and effective for long-term use in treating chronic, non-cancer pain,” according to the defendants’ motion asking state Supreme Court Justice Jerry Garguilo in Central Islip to dismiss the lawsuits.

Garguilo, who listened to more than six hours of oral arguments from a parade of lawyers, said he will issue a decision at a later date.

The lawsuits - filed by Suffolk County, Nassau County New York City, and dozens of other municipalities - accused the opioids manufacturers and distributors of fraud, negligence, public nuisance and unjust enrichment.

In the lawsuits, the municipalities alleged that the defendants created an artificially high demand for the prescription drugs by misrepresenting the risks and benefits to doctors and patients.

The suits are consolidated into one for pre-trial proceedings, but each case will be trial separately in the municipality in which it was filed.

Like other municipalities, Suffolk said the county has been forced to spend “exorbitant amounts of money” to deal with the fallout of the opioid addiction, and is seeking reimbursements for those costs.

“Like polluters who have enriched themselves while dumping toxin into a public water supply for decades, the Manufacturers should now be required to pay the cost of cleaning up the mess they have made,” Suffolk said in its motion opposing the defendants’ request.

The plaintiffs, including Suffolk, urged the judge to allow the lawsuits to proceed to the discovery stage and let the parties gather facts about the case.

“We don’t close the courthouse door at the outset before the plaintiff has a chance to get more information, and that’s why it should be allowed to proceed now,” Andrea Bierstein, of Manhattan, one of the plaintiff’s attorneys, said in an interview after the court proceeding.

The two dozen defendants named in the lawsuits are grouped into three categories: the opioids manufacturers, distributors and doctors.

The distributors of the prescription painkillers, according to their lawyers, do not market, promote or sale the opioids and urged the judge to dismiss the lawsuits against them.

Bierstein, however, said distributors along the supply chain were aware of the “suspiciously” large quantities of prescription painkiller pills “flooding” the various counties, and they had a duty to alert authorities.

“As the marketers put all of this stuff in the pipeline, the distributors saw it running through the pipeline, and they had the switches to shut it off,” said Bierstein. “And, they didn’t.

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