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December 28, 2005 - The Oregonian (OR)

Lawsuit Accuses Drug Firms Of Role In Meth-Related Killing

By Steve Suo, Ashbel S. Green

Return to Drug War News: Don't Miss Archive

The widow of an Oklahoma state trooper killed by a methamphetamine cook has sued Pfizer and other manufacturers of cold medicine, alleging the companies knew their products were widely used to make meth and failed to prevent it.

It is thought to be the first wrongful death lawsuit to accuse drug companies of negligence in the sale of products containing pseudoephedrine. The suit was filed last week by Linda Green, wife of Trooper Nik Green, in the rural Oklahoma county where Green was slain.

"She wants the companies to pay for what they've done, not just to Nik but to everybody," said Green's attorney, Gary J. James.

The suit names as defendants Wal-Mart, Walgreens and other retailer distributors along with manufacturers such as Pfizer, Leiner Health Products and Perrigo Co. Also named is Ricky Ray Malone, the man sentenced to death for Green's murder. James said a police search of Malone's home turned up sales receipts and packages of pseudoephedrine products made or sold by the defendants.

The lawsuit says the events that led to Green's murder "were not only foreseeable, but also a well-documented result of manufacturing, distributing and selling pseudoephedrine cold tablets."

Pfizer and other manufacturers did not return calls Tuesday, and officials at Walgreens and Wal-Mart declined to comment.

But Wal-Mart released a written statement saying the company is aware of the meth problem and has voluntarily limited its sales of pseudoephedrine products since 1997. Customers are now prevented from buying more than three packages.

"Wal-Mart supports efforts to curb the problem of methamphetamine," the company said. "This is an issue that affects the country, and we want to do our part to help.

Green's death on Dec. 26, 2003, helped ignite a national movement for tighter restrictions on the sale of products containing pseudoephedrine.

When Oklahoma's governor signed legislation four months later requiring customers to visit a pharmacy and show personal identification to buy cold medicines, the law was named after Green. Dozens of other states, including Oregon, followed Oklahoma's example.

According to evidence at the murder trial, Malone was operating a mobile meth lab along a rural roadside when Green confronted him. Malone wrestled Green's gun away, forced him to the ground and fired twice into the back of his head. Malone's attorneys argued he was in a meth-induced haze at the time.

Since Green's death, Linda Green has become known as an anti-meth crusader in Oklahoma. In May, she phoned in a tip to authorities when she saw a man buying items used to make meth at a Texas Wal-Mart. The man was convicted of illegally possessing pseudoephedrine after police found $1,000 worth of cold medicine in his car.

The lawsuit was filed at nearly the last possible moment under Oklahoma's two-year statute of limitations. James said Linda Green initially wavered because she didn't want to put her three children through the stress.

The small town of Oakman, Ala., filed a lawsuit in March seeking an injunction against the sale of products that contain pseudoephedrine. Minnesota's attorney general also said he was considering a lawsuit against the manufacturers of such products.

But the Oklahoma suit is believed to be the first to allege a link between a specific person's death and the producers of cold medicine. The lawsuit seeks at least $120,000 in compensatory and punitive damages, although James said the actual amount requested will be much larger.

The lawsuit alleges that the drug industry "chose to increase production and sales to exploit profits created by the skewed demand for pseudoephedrine." The companies, the suit says, "have known and should have known that a significant part of their cold medicine sale and profits are generated directly from drug addicts and street dealers."

The drug companies are accused of continually opposing regulations over their pseudoephedrine products, and the retailers are accused of refusing to market those products in a way that would have prevented Green's death.

The lawsuit also alleges that the drug industry has long known about the illicit use of its pseudoephedrine products and failed to introduce ingredients that cannot be converted to meth. Cited as an example is phenylephrine, a decongestant that Pfizer began using in its popular Sudafed brand in January.

Sudafed PE was introduced in response to new state regulations over the sale of pseudoephedrine, but phenylephrine has also been used for years in Europe.

"Well in advance of Trooper Green's death, a viable safe and effective alternative" was available, the lawsuit says. "However, the defendants deliberately refused to produce, market and sell the alternative in the United States until almost two years after Trooper Green's death."

The suit, which alleges the drug companies are financially responsible for violence stemming from illegal use of their products, echoes similar legal attacks on gun manufacturers.

Timothy D. Lytton, a professor at Albany Law School in New York, edited a 2005 book about suing the gun industry. Litigation claiming gun makers are to blame for gun violence has been largely unsuccessful.

Lytton said the pseudoephedrine suit sounded plausible, but many questions remained.

"Do you really buy this connection between the supposed negligence of the manufacturer and the shooting death?" he said. "Or are there just too many things going on here to plausibly hold the manufacturer responsible?"

Lawsuits claiming negligence by manufacturers of cigarettes, another legal product, have been more successful with large jury verdicts issued in recent years.

Bill Gaylord, an Oregon plaintiff's attorney who won an $80 million verdict against Philip Morris in 1999, said tobacco litigation is more straightforward than the case of pseudoephedrine.

Cigarettes are a product that kills people even when used as directed, and tobacco litigation has focused on establishing the manufacturers knew this in advance. Pseudoephedrine products are typically safe and effective when used as directed, and it is their illegal use that is linked to violence against a third party victim.

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