Allergan says there’s no false advertising if public never sees it

It's not false advertising if the plaintiff can't prove a marketing message was ever disseminated to the public, an opioid manufacturer argued in its motion for summary judgment Thursday in a $50 billion trial.

After a month and a half of plaintiffs' evidence in an Orange County bench trial, one of four drug company-defendants accused of fueling the opioid crisis in California by deceptively marketing opioids as rarely addicting, moved for a defense judgment in a written brief.

Opioid manufacturer Allergan PLC argued among other points that its marketing was not to blame for what it referred to in its papers as the "alleged opioid crisis," in California. Allergan said the state only presented two Allergan-specific documents during the plaintiffs' case in chief, which two witnesses acknowledged were for internal company use only and were not "patient facing."

If the documents never reach the eyes of the public, the state's false advertising and unfair competition claims fail, Allergan argued.

"First, a statement can only be likely to mislead the public if it was actually made to members of the public -- here, California prescribers or patients," Allergan's trial brief reads. "The internal training documents related to Kadian [Allergan's opioid product] therefore cannot establish FAL [False Advertising Law] or UCL [unfair Competition Law] liability."

Witnesses "conceded they had seen no evidence that the statements they cherry-picked from those documents were ever made publicly," the brief continued.

The documents in question were used to train Allergan sales representatives and included the term "pseudoaddiction," a term Dr. Anna Lembke, the people's sole marketing causation expert, testified about. Lembke said "pseudoaddiction" is a bogus term used by opioid manufacturers to sell more drugs to patients seeking chronic pain relief.

However Allergan, represented by Chicago attorney Donna M. Welch of Kirkland & Ellis LLP, said another plaintiff witness confirmed that "pseudoaddiction" is a term "used in a clinical sense," and also testified that it can be found in medical literature.

"While she took issue with the use of the term 'pseudoaddiction' in the Kadian Learning System, she 'didn't identify a single Kadian patient-facing or prescriber-facing promotional document' that used that term," Welch wrote.

Hoping Orange County Superior Court Judge Peter Wilson will toss the $50 billion false advertising and public nuisance suit, Allergan filed its motion for judgment that, if granted, will allow it to forgo oral arguments at trial.

The other defendant companies participating in the trial, Teva Pharmaceuticals, Endo Pharmaceuticals Inc., and Johnson & Johnson subsidiary Janssen Pharmaceuticals Inc., were expected to file similar motions later in the day. Purdue Pharma, also named in the suit, is sitting out the trial, pending the completion of a bankruptcy case in New York.

Wilson said Wednesday that if he did not deny the motions outright, he would allow the state, represented by four municipalities, to either file written replies or make oral arguments before he made his final ruling.

The outcome of the case, being tried remotely, will likely affect thousands of settlements in lawsuits filed nationwide by states and municipalities that claim Purdue and other opioid producers fueled an opioid crisis by marketing drugs as safe and effective pain treatments while downplaying the risk of addiction.

Arguing for the people of California are the Santa Clara County Counsel's Office, Orange County District Attorney's Office, and the Los Angeles County Counsel's Office. In addition to civil penalties, the people seek $50 billion in funds to abate the opioid crisis in the plaintiff counties and city, according to attorneys involved in the suit. People v. Purdue Pharma et al., 14-00725287 (Orange Super. Ct., filed May 21, 2014).