Class Treatment

At least four cases have been filed as putative class actions. Thus, one of the first major procedural hurdles will be class certification. In order to certify the classes, the courts will have to conclude, among other things, that the class members’ common issues predominate over any individual issues – a determination that will likely be difficult to reach. In each case there will be a need for individual proof regarding actual addiction to OxyContin, each class member’s unique medical condition, background and circumstances, and what each plaintiff knew about the alleged risk of addiction to painkillers. In an analogous case, a New York court concluded that class certification was inappropriate. Small v. Lorillard Tobacco Co., 720 .E.2d 892 ( .Y. 1999) In Small, a class of addicted cigarette buyers was decertified because the court concluded that individual issues would predominate, for example, that each class member’s knowledge of smoking risks would require individual inquiry.

Learned Intermediary Doctrine

For decades, the plaintiffs’ tort bar has struggled to create theories of liability against the prescription drug industry for injuries allegedly caused by the misuse or abuse of drugs that would withstand the challenge of a dispositive motion premised on the “learned intermediary” doctrine. For example, in Incollingo v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971) the Pennsylvania Supreme Court ruled that, for prescription drugs, a warning is not required to be given to the general public or patient, but must be communicated to the prescribing doctor. Since Incollingo, the Pennsylvania Superior Court has reiterated that the “marketing of pharmaceutical products to the public does not invalidate the learned intermediary doctrine.” Lennon v. Wyeth-Ayerst Laboratory, PICS Case No. 01-1240,(Pa. Super. 2001).



In jurisdictions like Pennsylvania where the learned intermediary doctrine has been recognized, OxyContin plaintiffs will face a substantial hurdle. They must establish that the manufacturers and marketers of the drug possessed information regarding the drug’s dangers which was unknown and unavailable to the prescribing physicians. They must also establish that the makers and marketers of OxyContin were in a better position than the prescribing physicians to determine whether the risks of addiction and withdrawal outweighed the drug’s medical benefits.



However, simply because OxyContin is a Schedule II controlled substance, prescribing physicians would know that it is a drug with high potential for abuse, and which might lead to severe psychological or physical dependence. The prescribing physician is expected to apply skill, knowledge, and information about the patient to determine whether such a drug is appropriate.

Failure To Warn