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A potential billion-dollar verdict for Ky. taxpayers rests on a disputed missed court deadline

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FRANKFORT, Kentucky — What does it cost to miss a deadline? For the company that makes the prescription painkiller Oxycontin, the answer could be more than $1 billion.

Kentucky is suing Purdue Pharma on claims that the company misrepresented its prescription painkiller, resulting in a wave of addiction and increased medical costs across the state. But before the trial can start, both sides must file "admissions" so the court could determine a set of facts that are not in dispute.

Kentucky officials filed theirs, which included claims that Purdue Pharma lied about the addictiveness of the drug to doctors, who then overprescribed it to an unwitting population of poor people in eastern Kentucky. But when Purdue Pharma did not respond, the judge ruled those claims were admissible in court. That cleared the way for the state to win the lawsuit with the only question being how much Purdue Pharma would have to pay.

"I always thought if we ever got it to a court of law a billion dollars wouldn't touch it," said Kentucky House Speaker Greg Stumbo, who filed the lawsuit when he was state Attorney General.

The judge's decision surprised company officials. When the state filed its claims back in 2007, Purdue Pharma had 45 days to respond. But in the middle of that window, the case was transferred to federal court at the company's request. Both sides had to file new sets of paperwork, and the original deadline for the state case disappeared.

But more than five years later, the case was sent back to state court at the request of the Kentucky Attorney General's office. That re-started the deadline to respond to the state's original claims, the Attorney General's Office says. Company officials dispute that, and on Thursday they asked the state Supreme Court to intervene.

They pointed out a co-defendant in the case, Abbott Labs, also missed the deadline yet the court allowed that company to file a response anyway. And they said if the case moves forward like this, the company won't be able to defend itself and won't be able to get information from Kentucky officials about the state's role in the epidemic of prescription painkiller abuse.

"The commonwealth is going to be able to use (these admissions) as a sword and as a shield to keep us from finding the information that we need to develop a full record," attorney Daniel Danford said.

The Attorney General's Office said the state lawsuit was suspended when it was transferred to federal court, then re-started when it came back. That's the way courts have handled cases like this going back 50 years, and making an exception for Purdue Pharma will result in a flood of similar requests from other litigants who miss deadlines, the state contends.

"Purdue Pharma could care less about the merits of this case," Assistant Attorney General Mitchel Denham said. "They are a multi-billion dollar company here asking this court for special accommodations and to change the rules because they did not follow the clear and simple rules."

Kentucky joined several other states in an earlier joint lawsuit against Purdue Pharma. In 2007, the company settled the lawsuit for $600 million. But Kentucky was offered a little more than half a million dollars. The state rejected that settlement and filed its own lawsuit.

Oxycontin is the brand name for oxycodone, an opioid that the FDA approved for alleviating chronic pain in 1995. It was marketed as a pill that, when swallowed, would slowly release the drug over 12 hours. Company officials said that made it less addictive than other forms of the drug. But when the pill is crushed, it loses its time release qualities and creates an instant high.

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