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Actions seek liability for wrongful death and illegal drug use

Tresa Baldas

The National Law Journal

January 10, 2006

The cold medicine industry is battling a new strain of legal headaches involving the unlawful use of pseudoephedrine, a key ingredient in decongestants that's used to make crystal meth.

In Oklahoma, a wrongful death lawsuit involving the murder of a state trooper killed by a meth cook has been filed against the makers and sellers of pseudoephedrine, alleging that the drug companies long knew the product was being used for methamphetamine but did nothing about it. Green v. Pfizer, No. CJ-05-00115 (Cotton Co., Okla., Dist. Ct.).

Also in Oklahoma, the town of Oakman has filed a suit against Pfizer calling for a ban of pseudoephedrine products in its town, claiming the decongestant pills have created a huge local drug problem. Oakman v. Pfizer (Walker Co., Okla., Cir. Ct.).

In Minnesota, the state attorney general's Office is exploring a civil lawsuit against the distributors of pseudoephedrine in response to a growing drug problem there. And on the legislative front, at least a half-dozen states have passed laws in the last year restricting the sale of the product, requiring it to be stocked behind the counter.

Plaintiffs attorney Gary James, who is handling the wrongful death suit in Oklahoma, said the cold medicine industry has "been under long warning" about the meth problem, and that litigation is long overdue.

"The manufacturers of pseudoephedrine know that their drugs were being used illegally and they've reaped millions and millions of dollars from it, maybe even billions," said James. He claims that in the last decade, pseudoephedrine imports to the U.S. have "skyrocketed" by 900 percent.

"If I'm the executive of a company, you know you're not selling a legitimate amount of decongestant," James said.

Officials from Pfizer Inc., Wal-Mart Stores Inc. and Walgreen Co. -- all defendants in the Oklahoma wrongful death suit -- did not return calls seeking comment.

In its 2005 "Corporate Citizenship Report" posted on its Web site, Pfizer stated that it has taken steps to curb the illegal use of pseudoephedrine, including introducing a new decongestant that cannot be converted to meth.

"Pfizer was the first to introduce a non-PSE product to help combat the growing methamphetamine problem," the report stated. "Pfizer also has continued its support of Meth Watch, a national program for retailers and law enforcement officials that helps limit theft and questionable sales of PSE products. And this year, we took a lead role in working with state and federal officials to advance national legislation to restrict access to PSE medicines, even our own brands, including requirements that the products be kept behind the pharmacy counter."

According to the U.S. Drug Enforcement Agency, meth lab seizures have more than doubled in the last five years, from 9,092 in 2000 to 17,170 in 2004.

In the wrongful death suit in Oklahoma, filed on Dec. 22, James, of Gary James & Associates in Oklahoma City, alleges that the drug industry is responsible for violence stemming from cold medications because it knowingly put a dangerous product on the market, and long resisted making a safer product because of costs.

The suit also names Ricky Ray Malone, the meth cook sentenced to death for fatally shooting state trooper Nic Green during a 2003 drug bust.

Bill Gaylord, an Oregon plaintiffs lawyer who won an $80 million verdict in a tobacco lawsuit against Philip Morris in 1999, sees two potential challenges for plaintiffs in the pseudoephedrine wrongful death suit: proving that the drug companies knew that their products would be used in nefarious ways, and shifting the blame from the actual perpetrators.

"That's always a tougher case because there is somebody we can all agree is a bad person who is not a manufacturer," said Gaylord, of Gaylord & Eyerman in Portland, Ore. "When you're talking about a jury trial, you've got a task laid out for you to overcome the jury's natural tendency to say, 'Well this is the criminal's fault.'"

But the growing meth problem in the United States is also the drug industry's fault, argued plaintiffs attorney Garve Ivey Jr. of Ivey & Ragsdale in Jasper, Ala., who is representing the town of Oakman, Okla., in its suit to ban the sale of pseudoephedrine products in its town.

Ivey alleges that the drug industry for years pumped up production of pseudoephedrine, knowing it would wind up in the hands of drug addicts and drug dealers. "They gotta know what's going on with these drugs. And I don't think they care. Why would you make that much of it to treat colds?" said Ivey.

Attorney John Goodman of Bradley Arant Rose & White in Birmingham, Ala., who is representing Pfizer in that suit, was unavailable for comment.

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