Endo, Arnold & Porter deny deliberately withholding opioid evidence

The Wider Image: Boston-area paramedics face front lines of U.S. opioid crisis
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(Reuters) - Endo International PLC and its law firm Arnold & Porter Kaye Scholer have denied willfully withholding evidence from New York and two counties accusing the company of fueling an opioid epidemic, urging a judge to deny the state's motion for default judgment.

In a Suffolk County Supreme Court filing on Wednesday, Endo said it had made efforts to produce discovery in "good faith," but "recognizes that those efforts have at times fallen short."

Justice Jerry Garguilo has scheduled a hearing for Friday morning on New York's motion, joined by Suffolk and Nassau counties, to order default judgment of liability against the drugmaker as a sanction for discovery violations. Trial has been underway in the case for more than a month.

"Endo strongly disagrees with the state's assertions and believes that a full examination of the facts will confirm that Endo and its counsel did not act contumaciously, and the state's case has not been irreparably or significantly impaired by the late productions," Endo said in Wednesday's filing.

Arnold & Porter similarly said it "regrets" that some discovery was not produced sooner but that there was "no willful or contumacious misconduct" that would support default.

Endo last month agreed to pay $35 million to settle opioid claims by counties in Tennessee after a judge there entered default against it based on similar accusations of withholding discovery.

In its motion for default judgment on Sunday, New York said documents produced mid-trial showed that Endo and Arnold & Porter "have - for nearly a decade - been concealing vast troves of smoking-gun evidence proving Endo's grave misconduct in New York."

The previously withheld documents allegedly include internal communications showing that an Endo sales representative saw "a lot of drug abusers and crack-heads" during a visit to a prescriber's office, which the representative described as "a scary place." Endo nonetheless continued to send the representative to the prescriber's office to promote opioid products and made no report to state drug enforcement authorities, the state said.

More than 3,000 lawsuits have been filed by state and local governments accusing opioid manufacturers of falsely marketing opioid drugs as safe, and distributors and pharmacies of ignoring red flags that they were being used illegally, fueling a nationwide epidemic.

A trial is also underway against drugmakers in California, and another concluded last week against distributors in West Virginia.

Johnson & Johnson and the nation's three largest distributors have offered to settle claims nationwide for $26 billion. Endo, along with its co-defendant drugmakers AbbVie Inc and Teva Pharmaceutical Industries Ltd, are not part of that deal.

Nearly 500,000 people across the country have died from opioid overdoses between 1999 and 2019, according to the U.S. Centers for Disease Control and Prevention. The CDC earlier this month said provisional data showed 69,710 opioid overdose deaths in 2020, up more than 36% from the previous year.

The case is In Re Opioid Litigation, Suffolk Supreme Court, No. 400000/2017.

For Suffolk: Jayne Conroy of Simmons Hanly Conroy

For Nassau: Hunter Shkolnik of Napoli Shkolnik

For New York: John Oleske of the New York Attorney General's office

For Endo: James Herschlein of Arnold & Porter; Henninger Bullock of Mayer Brown

For Teva: Nancy Patterson of Morgan, Lewis & Bockius

For Allergan: Mike Brock of Kirkland & Ellis

Read more:

Endo faces default over hiding 'smoking gun' opioid evidence (again)

Drugmaker Endo settles opioid claims by Tennessee counties, cities for $35 mln

U.S. state officials urge support for landmark $26 bln opioid settlement

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.