NY AG's Opioid Epidemic Jury Trial Set For Early 2021

By Frank G. Runyeon
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Law360 (October 28, 2020, 10:08 PM EDT) -- A New York state judge signaled trial will begin after the holidays in the state attorney general's long-awaited "opioid epidemic" trial in which drugmakers and distributors face allegations they are directly responsible for the cost of the health crisis linked to the drugs they sold.

During a video hearing on Wednesday, New York state court Justice Jerry Garguilo told the government and a phalanx of attorneys for opioid manufacturers and distributors, including Johnson & Johnson and McKesson Corp., that "this case will go to trial" with jury selection in January and opening statements in February or March.

The trial was previously set to begin in March of this year when it was delayed by the COVID-19 pandemic — at the time, there were just 173 known infections in the state, today there have been 500,000 confirmed cases — but the judge said the trial will go on, with precautions. It will be livestreamed, despite objections from the companies.

"The court is anxious to get this case off the ground and start trial," said Justice Garguilo, addressing over 60 teleconference attendees from the bench in his courtroom in Suffolk County.

The judge likened the mass of opioid litigation to a classic 1958 sci-fi horror film.

"When I was a kid there was a movie. It was called 'The Blob,'" Justice Garguilo said, comparing the 3,000 federal opioid litigation cases and several hundred state cases to the gigantic gelatinous monster. "It seems to me that the job of the courts and all of you is to move this blob through a garage door to get it to the other side."

Although states and local governments have filed thousands of cases blaming drug companies for the opioid crisis, only one case has gone to trial. That bench trial saw Oklahoma's attorney general win a $465 million judgment against Johnson & Johnson, which has been appealed.

While Purdue Pharma and the Sackler family — which owns the drugmaker — topped the New York attorney general's list of defendants in its March 2019 complaint, those key players in the opioid controversy will not be a part of this trial, as those claims have moved to federal bankruptcy court.

The jury will hear Attorney General Letitia James and the two Long Island counties bring claims against drugmakers including Johnson & Johnson's Janssen Pharmaceuticals, Endo Health Solutions, Teva Pharmaceuticals USA Inc. and Allergan Finance LLC, as well as distributors McKesson Corp., Cardinal Health Inc., Amerisource Bergen Drug Corp. and Rochester Drug Cooperative Inc.

"For more than two decades, the opioid epidemic has wreaked havoc on New Yorkers and Americans across the nation," James said in a statement Wednesday. "Come next year, the deadly scheme perpetrated by the companies responsible for this national nightmare will be presented in open court and laid bare before the American people, and no one will be able to deny the immoral actions that led us here."

The hearing previewed arguments on both sides that are likely to emerge at trial, as state prosecutors sparred with opioid companies over discovery disputes.

"Let's be clear: Their whole strategy is to put the state on trial," said government counsel David Nachman, rejecting the companies' notion that the state could be held legally responsible in part for the opioid epidemic through so-called contributory negligence. "Are we going to have a six-week or six-month trial about the various ways" that the state "policed distributors or did not police doctors?"

"The whole thing is a tempest in a teapot and not applicable to the case that's going to be tried," Nachman said, arguing that if the court found the companies' actions were a substantial factor in the opioid epidemic then contributory negligence would not be a defense.

Harvey Bartle, attorney for the drugmakers, shot back that the government was taking for granted that the opioid companies had any responsibility for the opioid epidemic at all.

"Mr. Nachman is assuming that there will be a finding that we made some contribution by the fact that we happen to manufacture opioids," Bartle said. "I intend to show that we didn't contribute at all. Zero."

Toward the end of the hearing, Janssen attorney Sabrina Strong asked a skeptical Justice Garguilo to forbid the government from sharing the stories of those who have suffered during the opioid epidemic, for instance, in a video during opening statements.

"Some terribly tragic addiction story. We would say that should never see the light of day in your courtroom," Strong argued.

"Why can't I do that in real time?" the judge asked, offering to deal with similar motions during the trial and not before. Strong started to argue further, but the judge shut her down.

"So far, I haven't come across anything I couldn't handle at trial," Justice Garguilo said, recounting his many years dealing with asbestos litigation and mesothelioma sufferers.

The judge asked for attorneys to hammer out a prospective juror questionnaire before Thanksgiving so it would be ready to distribute to groups of 30 to 40 jurors at a time in January.

"I don't intend to try this case between Thanksgiving and Christmas," the judge explained earlier. "People's minds sometimes wander into the important things in their lives, like their families for instance."

The state is represented by David Nachman, John Oleske, Elizabeth Chesler and Umair Khan of the Office of the New York State Attorney General.

Nassau County is represented by Paul J. Napoli, Hunter J. Shkolnik, Salvatore C. Badala and Joseph L. Ciaccio of Napoli Shkolnik PLLC.

Suffolk County is represented by Paul Hanly, Jayne Conroy, Thomas Sheridan, Sarah Burns, Ellyn Hurd, Laura Fitzpatrick, Holly Nighbert, Justin Presnal, Jo Anna Pollock and Bonnie Kendrick of Simmons Hanly Conroy LLC.

Allergan Finance LLC is represented by Jennifer Levy and Donna Welch of Kirkland & Ellis LLP.

AmerisourceBergen Drug Corp., Bellco Drug Corp. and American Medical Distributors Inc. is represented by Robert Nicholas, Shannon McClure, Michael Salimbene of Reed Smith LLP and Paul Asfendis of Gibbons PC.

Anda Inc. is represented by James Matthews, Ana Francisco and Katy Koski of Foley & Lardner LLP.

Cardinal Health Inc. and Kinray LLC are represented by Enu Mainigi, Steven Pyser and Ashley Hardin of Williams & Connolly LLP.

Cephalon Inc., Teva Pharmaceuticals USA Inc., Watson Laboratories Inc., Actavis LLC and Actavis Pharma Inc. are represented by Nancy Patterson, Harvey Bartle, Brian Ercole, Mark Fiore and Pamela Holly of Morgan Lewis & Bockius LLP.

CVS Pharmacy Inc. is represented by Graeme Bush, William Murphy, Shawn Naunton, and Adam Fotiades of Zuckerman Spaeder LLP.

Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Par Pharmaceutical Inc. and Par Pharmaceutical Companies Inc. is represented by Andrew Solow, Ingo W. Sprie Jr., James D. Herschlein and Julie B. du Pont of Arnold & Porter.

Johnson & Johnson and Janssen Pharmaceuticals Inc. is represented by M. Randall Oppenheimer, Sabrina Strong, Stephen Brody, Charles Lifland and Nate Asher of O'Melveny & Myers LLP.

McKesson Corp. and PSS World Medical Inc. is represented by Paul Schmidt, Laura Flahive Wu, Andrew Stanner, David Luttinger, Christopher Yeung and Alexander Setzepfandt of Covington & Burling LLP.

Walgreen Co. and Walgreen Eastern Co. is represented by Kaspar Stoffelmayr, Brian Swanson, Kate Swift, Alex Harris of Bartlit Beck LLP and Dina Hamerman of Yankwitt LLP.

Walmart Inc. is represented by Christopher Lovrien, Edward M. Carter, Sharyl Reisman and Stephanie H. Jones of Jones Day.

Rite Aid of New York Inc. and Rite Aid of Maryland Inc. is represented by Kelly A. Moore, John K. Gisleson and John P. Lavelle Jr. of Morgan Lewis & Bockius LLP.

The case is In re: Opioid Litigation, case number 400000/2017, in the Supreme Court of the State of New York, Suffolk County.

--Additional reporting by Emily Field. Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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