Endo now faces contempt as well as default in N.Y. opioid trial

A sculpture made out of opiod pill bottles is set up next to Democratic presidential candidate and former Vice President Joe Biden's campaign bus in Somersworth, New Hampshire, U.S., February 5, 2020. REUTERS/Rick Wilking
  • AG says Endo failed to hand over list of late discovery as required
  • Judge still weighing default judgment against drugmaker

(Reuters) - Endo International PLC, already facing potential default judgment for late production of evidence in New York's lawsuit against it over its opioid marketing, could also be held in contempt for violating a separate discovery order.

Justice Jerry Garguilo in Suffolk County on Wednesday ordered the company to show cause at a hearing on Aug. 25 why it should not be held in contempt for failing to produce more detailed information to the state and its co-plaintiffs Nassau and Suffolk Counties about the late evidence.

Endo and its primary law firm in the case, Arnold & Porter Kaye Scholer, did not immediately respond to requests for comment. A trial has been underway in the case since last month.

Garguilo on Aug. 2 ordered Endo and Arnold & Porter to show cause why default judgment should not be entered after the plaintiffs accused the company of dumping "vast troves of smoking-gun evidence proving Endo's grave misconduct in New York," which had not been previously produced, mid-trial. The company and the firm have denied that any evidence was withheld deliberately.

The disputed evidence included records of Endo sales' representatives visits to New York prescribers and other internal documents. Plaintiffs have pointed to a note from a sales representative that one doctor's office was a "scary place" full of "drug abusers," and another representatives' voicemail boasting of securing a doctor's commitment to prescribe Endo's painkiller Opana ER following a dinner.

Along with his order to show cause, Garguilo ordered Endo and the firm in the interim to produce "dates, persons, entities and repositories establishing the chain of custody of each responsive document produced by Endo ... after the close of discovery in this action."

In a court filing on Tuesday, however, John Oleske, a lawyer for the state, said the company had failed to produce such a list and should be held in contempt until it does so.

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.

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.

Johnson & Johnson and the nation's three largest distributors have offered to settle claims nationwide for $26 billion. Endos is 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; Hank Bullock of Mayer Brown; Jonathan Redgrave of Redgrave

For Teva: Nancy Patterson of Morgan, Lewis & Bockius

For Allergan: Mike Brock of Kirkland & Ellis

Read more:

"We cannot go on in this condition" N.Y. AG tells opioid trial judge

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

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

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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.