Federal judge in Tulsa hears defense testimony on Rx Depot injunction

Thursday, October 9th 2003, 12:00 am

By: News On 6

TULSA, Okla. (AP) -- A heart transplant patient told a federal judge Thursday that he saves nearly $9,000 a year on medication through a company the government says is breaking the law by importing drugs from Canada.

Jerry Cox told U.S. District Judge Claire Eagan that he would suffer serious economic harm if she shuts down 85 storefronts that operate under the names Rx Depot and Rx of Canada.

Eagan will decide whether to grant the government's request for a nationwide injunction against the Tulsa-based chain. After a two-day hearing Thursday, she gave both sides until Oct. 31 to submit final findings of fact in the case.

She is expected to make her decision by written order soon after that.

The Justice Department alleges the company is breaking the law and putting the public at risk by importing drugs from Canada outside Food and Drug Administration scrutiny.

FDA witnesses testified Wednesday that the safety of drugs coming from Canada could not be ensured.

But three Rx Depot customers, including Cox, told the judge they had no problems with the drugs from Canada and that they couldn't afford their medications otherwise.

"It was a blessing when Rx Depot came around," said Cox, who testified the $22,900 he spent on drugs each year dropped to $14,000 a year when he started getting medication from Canada.

Mary Wilburn, a 71-year-old who is blind and suffers from seizures, said if she lived closer to the Canadian border she would cross over, like other senior citizens, to buy her medication.

"I'd go from right here if I could," the Oklahoma City resident said.

FDA witnesses said the agency uses enforcement discretion when it comes to individuals buying small amounts of medication in Canada.

Springfield, Mass., Mayor Michael Albano [pictured] has said his city expects to save $9 million through a voluntary program in which employees get their drugs from Canada. The city's program get its drugs through another company, CanaRX.

Albano testified the city created the program based on FDA comments to Congress that it would not stop individuals who go to Canada to buy drugs or those who buy them over the Internet.

Testimony also came from Rx Depot president Carl Moore, who said he created the company not only to make a profit but also to help seniors.

"The vast majority of our people are there because they could not afford their medicine," he testified.

If Rx Depot must shut down "hundreds of thousands would suffer," he said.

Customers bring prescriptions to Rx Depot stores, where an administrator looks up the price. The prescription is copied and faxed along with the patient's medical history to a Canadian pharmacy, which fills it and mails the medication to customers.

In closing arguments, Justice Department attorney Gerald Kell said that while the government had sympathy for Rx Depot's customers, its operation is "a wholesale violation of the laws that Congress has passed."

Unlike individuals crossing into Canada to buy medication "what we have here is a large company which makes commissions essentially off the sale of drugs," Kell said.

Rx Depot's attorney Fred Stoops told the judge it was in the public's interest to leave Rx Depot open. He blamed the FDA's policies for the fact that Americans were turning to Canada for their medications.

"We have brought several witnesses here," he said. "We could have brought thousands."