Judge asked to force pharmaceutical company to comply with subpoena
Citing the urgency of a public health crisis, the Attorney General’s Office is asking a court to compel Purdue Pharma to comply with a subpoena for documents in its investigation of possible deceptive marketing of opioids.
The state, in its newest petition filed on Friday, goes so far as to claim the company’s sales team gave misleading presentations in portraying or omitting the risk of addiction over the course of 217 marketing visits to New Hampshire in 2014.
In a separate filing Friday, Purdue and other pharmaceutical companies under review for possible consumer protection violations asked the court to enforce a protective order and block any subpoena because of pending appeals before the New Hampshire Supreme Court.
The drug companies have long objected to the Attorney General’s Office hiring a private law firm to assist its investigation. They argue the firm of Cohen Milstein Sellers & Toll have a financial incentive to find alleged wrongdoing, and to recommend the state file litigation.
“Purdue has repeatedly made clear that it is willing to work with the Attorney General’s Office on its investigation,” said David Vicinanzo, an attorney for Purdue Pharma, in a statement. “However, we’ve raised a very serious issue about whether it is proper for government enforcement powers to be privatized to outside counsel with a special financial interest. We have offered to produce documents if the state would agree not to share those documents with private lawyers unless and until the Supreme Court resolves the important legal issues involved. The state will not do so and we are left with no choice but to seek the intervention of the court.
”Last summer, Attorney General Joseph Foster announced his office was conducting an investigation into whether or not certain pharmaceutical companies used deceptive marketing practices for pain medications.
James T. Boffetti, senior assistant attorney general and chief of the Consumer Protection and Antitrust Bureau, sought to enforce its first subpoena last September. Purdue and other companies objected, which led the state to seek court action.
In March of this year, Merrimack County Superior Court Justice Diane M. Nicolosi granted a protection order for the drug companies and nixed the state’s hiring of Cohen Milstein, saying the attorney general was outside its statutory authority to hire private counsel without first obtaining approval from the New Hampshire Executive Council and a joint legislative fiscal committee.
Both sides appealed. Foster was happy that the court rejected claims that Cohen Milstein was a public employee, with respect to the state ethics code.
Following the Nicolosi ruling, Foster went before the Executive Council and fiscal committee to win approval for $100,000 to continue to use Cohen Milstein.
The private counsel is hired under a different arrangement, however. Instead of a contingency fee, it’s a fixed fee of $75,000 to assist the Attorney General’s Office, which retains its supervisory role.
The pharmaceutical companies say conflicts persist with Cohen Milstein in this financial framework, in part because the firm’s attorney time ranges from an hourly rate of $250 to $915. Assuming a rate of $350 an hour, $50,000 in legal fees would be depleted in 143 billable hours, according to the motion to enforce the protective order, filed June 3 by Purdue Pharma, Actavis Pharma, Janssen Pharmaceuticals, and Teva Pharmaceuticals.
In short, the drug companies contend that the new fee arrangement has the same due process and conflict of interest problems that are currently on appeal to the Supreme Court.
Boffetti, in an interview Thursday, said the Attorney General’s Office is investigating and has not made any decisions with regards to potential enforcement action or litigation.
“All of these drug companies, they’ve all engaged in a pattern of stonewalling,” he said.