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

REUTERS/George Frey

(Reuters) - Lawyers for New York and two counties on Friday said that there was no choice but to hold Endo International PLC liable by default of fueling an opioid epidemic after the company produced "vast troves" of late discovery during a jury trial.

"We cannot go on in this condition," John Oleske of the New York Attorney General's office told Justice Jerry Garguilo at a hearing in Suffolk County, saying that the state's and counties' trial strategy could have been drastically different if they had earlier received the materials, including records of sales representatives' visits to doctors.

Jonathan Redgrave of Redgrave, a lawyer representing Endo in the discovery dispute, said he believed the issue could be resolved by appointing a discovery referee.

Default is "such an extreme, that this record right now does not support," he said.

A default judgment against Endo would leave only AbbVie Inc and Teva Pharmaceutical Industries as defendants in the case brought by the state and Nassau and Suffolk counties.

New York, later joined by the counties, moved for default judgment Sunday, arguing that Endo had willfully withheld records including internal communications and notes about sales representatives' visits to doctors.

The company and its law firm, Arnold & Porter, have said they regret that the materials were not produced sooner but denied withholding them willfully.

They have said that many of the disputed materials have been produced in other opioid litigation around the country and in a multidistrict litigation in Ohio. Hunter Shkolnik of Napoli Shkolnik, a lawyer for Nassau, on Friday said that amounted to "hiding in plain sight."

Oleske at the hearing played audio excerpts of what he said were newly obtained voicemails, including one from an Endo employee describing a "March Madness" tournament to boost prescriptions of the company's opioid drug Opana ER, and one in which a sales representative boasted that he believed a doctor had "committed" to using the drug following a dinner.

Hank Bullock of Mayer Brown, another lawyer for Endo, said that similar materials were already in discovery, meaning that the plaintiffs' trial strategy would not necessarily have changed.

"I don't think that I am speaking out of school when I say that is not a novel concept in the industry," he said of the alleged tournament.

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:

Endo, Arnold & Porter deny deliberately withholding opioid evidence

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.