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400000/2017
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

IN RE OPIOID LITIGATION Index No.: 400000/2017

Hon. Jerry Garguilo
Mot. Seq. No. 252

THIS DOCUMENT RELATES TO:

County of Suffolk v. Purdue Pharma L.P., et al., Index No. 400001/2017;

County of Nassau v. Purdue Pharma L.P., et al., Index No. 400008/2017; and
The State of New York v. Purdue Pharma L.P., et al., Index No. 400016/2018

DEFENDANTS'
CERTAIN MANUFACTURER NOTICE OF JOINDER TO
DISTRIBUTORS'
REPLY MEMORANDUM IN FURTHER SUPPORT OF
DISTRIBUTORS'
MOTION FOR APPORTIONMENT OF
CAUSATION AND RESPONSIBILITY AT TRIAL

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Defendants Johnson & Johnson, Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica,

Inc. n/1da Janssen Pharmaceuticals, Inc., and Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a

Janssen Pharmaceuticals, Inc., Allergan Finance, LLC, Cephalon, Inc., Teva Pharmaceuticals

USA, Inc., Watson Laboratories, Inc., Actavis LLC, and Actavis Pharma, Inc. f/k/a Watson

Pharma, Inc., and Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Par Pharmaceutical,

Distributors'
Inc., and Par Pharmaceutical Companies, Inc. submit this Notice of Joinder to the

Distributors'
Reply Memorandum in Further Support of the Motion for Apportionment of

Causation and Responsibility at Trial. NYSCEF Doc. No. 7243.

INTRODUCTION

Plaintiffs'
unrelenting demand for joint and several liability is as audacious as it is legally

misguided. Plaintiffs have brought unprecedented claims to assign responsibility for a series of

complex social problems, and assert they will prove the disputed causes of those problems using

"aggregate"
speculative expert testimony. They now suggest that the claims they have brought

are simply so vast and complex that responsibility for the distinct harms they assert cannot be

Plaintiffs'
apportioned in a rational and orderly manner. In that upside-down account, choice to

bring claims they cannot prove with any degree of precision purportedly allows the jury to hold

each Defendant fully liable for thousands of injuries it did not cause.

Plaintiffs'
No authority supports proposition that public nuisance is a legal island where

ordinary apportionment principles cease to apply. Rather, established common-law rules and

precedents applying New York nuisance law to mass torts compel the conclusion that, on these

facts, apportionment is not just permissible, but legally mandatory. Any other outcome would

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erroneously hold a defendant liable for injuries it did not cause and subject it to massively

disproportionate liability in violation of due process and fundamental fairness.

Plaintiffs'
Any difficulties in apportioning liability are a function of choice to use

slapdash evidence in an effort to prove staggeringly ambitious claims. But that choice does not

change the legal mandate for the jury to determine each Defendant's contribution, as well as

contributions from other causes. The required apportionment, moreover, must be made by the

Phase I jury. It turns on questions of causation that that jury will decide, and having a second

intertwined"
jury revisit such an "inextricably question would be reversible error.

The Court should therefore put apportionment to the Phase I jury, using the legally sound

verdict form Defendants have proposed.

I. Plaintiffs are wrong that joint and several liability is automatic in public nuisance
cases.

Plaintiffs ask this Court to accept a sweeping proposition: that New York law imposes

automatic joint and several liability in every public nuisance case. Opp. at 3. Such an

extraordinary claim-one clearly at odds with common-sense principles of fairness and

proportionality-demands clear authority and a powerful explanation. Both are conspicuously

Plaintiffs'
absent from opposition.

Plaintiffs offer only a handful of stray quotes stating that "nuisance liability is joint and

several."
Opp. at 3-5. But those quotes merely reflect the reality that public nuisance cases

frequently involve a single indivisible injury for which joint and several liability was proper. See,

e.g., State v. Schenectady Chems., Inc., 479 N.Y.S.2d 1010, 1014 (3d Dep't 1984) (liability for

mixed" defendants'
"inextricably hazardous waste joint and several where multiple "chemical

by-products were allegedly disposed of at [a single] site"); State v. City of Yonkers, 14 Misc 3d

1229(A), 2004 WL 5213504, at *1, 12 (Sup. Ct. Westchester Cty. 2004) (liability for discharge

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of untreated sewage from multiple outlets causing heightened bacteria levels in stream). None of

those cases carves public nuisance out from the common-law rule mandating several (but not

joint) liability where discrete harms are alleged, or where there is a rational way to allocate

liability for a single harm. See Restatement (Second) of Torts § 433A.

To the contrary, overwhelming authority establishes that several liability is available in

public nuisance cases. Restatement (Second) of Torts § 840E-which Plaintiffs cite in their

instructions1
proposed jury but ignore here-specifies that, for "both public and private

nuisances," contribution"
id., cmt. a, defendants are liable only for their "own to the asserted

harm, emphasizing that "[a]s a practical matter, many nuisances are capable of apportionment

among two or more persons who contribute to them, because a reasonable basis can be found for

party," b.2
dividing the harm done on the basis of the extent of the contribution of each id. cmt.

"difficult[y]"
And in Chipman v. Palmer, the Court of Appeals held that, despite the of allocation

independently"
where multiple defendants "severally and polluted a stream, liability for the

public nuisance was several. 77 N.Y. 51, 53-54 (1879); see Restatement (Second) of Torts

"difficulty"
§ 433A cmt. b (liability is several even if there is allocating fault for distinct harms,

since "[i]t is possible to make a rough estimate which will fairly apportion ... damages").

Plaintiffs'
only answer is that, after Simmons v. Everson, 124 N.Y. 319 (1891), Chipman

is no longer good law. See Opp. at 4-5. But no matter how many times Plaintiffs repeat that

1 Defendants'
See NYSCEF 6756 & n.25 (acknowledging that liability, if any, is limited to "its
own contribution") (emphasis added) (quoting Restatement (Second) of Torts § 840E)).
2
New York courts rely on the second restatement in nuisance cases. See Copart Indus., Inc. v.
Consol. Edison Co. of New York, Inc., 41 N.Y. 2d 564, 568 (1977); City of New York v. A-1

Jewelry & Pawn, Inc., 247 F.R.D. 296, 347 (E.D.N.Y. 2007); N.A.A.C.P. v. AcuSport, Inc., 271

F. Supp. 2d 435, 485-87 (E.D.N.Y. 2003); see also Connecticut v. Am. Elec. Power Co., 582

F.3d 309, 351 (2d Cir. 2009), rev'd on other grounds, 564 U.S. 410 (2011) ("[T]he Restatement
law."
principles have served as the backbone of state nuisance (collecting authorities)).

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claim, it fails even passing scrutiny. Simmons imposed joint and several liability for a death

caused by the collapse of a brick wall shared by three adjoining stores-a classic indivisible

"direct[ly]," "immediate[ly]"
injury flowing simultaneously, and from the concurrent negligence

of each owner. See Simmons, 124 N.Y. at 319; Restatement (Second) of Torts § 433A cmt. i

("Certain kinds of harm, by their nature, are normally incapable of ... practical division. Death is

that kind of harm....").

Confirming that Simmons did not overrule or limit Chipman, Judge Weinstein

consistently has recognized that Chipman controls the availability of joint and several liability

for public nuisance under New York law. See N.A.A.C.P., 271 F. Supp. 2d at 493 (noting that,

actor['s]"
where plaintiff cannot prove a "contributing conduct, standing alone, caused public

nuisance, that actor "cannot be held jointly and severally liable in a[ public nuisance] action for

damages"
(citing Chipman) (emphasis added)); A-1 Jewelry & Pawn, Inc., 247 F.R.D. at 347

(same).

defendants'
Judge Weinstein is not alone. In a public nuisance case for many alleged

contributions to chemical groundwater pollution, Judge Scheindlin similarly concluded that joint

and several liability was both unlawful and unfair. In re Methyl Tertiary Butyl Ether ("MTBE")

Products Liab. Litig., 447 F. Supp. 2d 289, 293, 302-04 (S.D.N.Y. 2006). "Concurrent

wrongdoing,"
the court explained, "allows joint and several liability because of the 'injustice of

allowing a proved wrongdoer who has in fact caused the harm ... to escape liability merely

other[s].'"
because [that] harm ... combined with similar harm inflicted by Id. at 297 (quoting

Restatement (Second) of Torts § 433B(2)). But joint and several liability may be imposed "only

after a plaintiffproves (1) an indivisible injury and (2) that all defendants sought to be held

injury."
liable actually caused th[at] Id. (emphasis added); see also Schriver v. Village of

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Johnstown, 24 N.Y.S. 1083, 1085 (3d Dep't 1893), aff'd, 148 N.Y. 764 (1896) (defendant "can

wrong"
be charged only with that part of the injury occasioned by its own even where the

impossible"
"judgment is an estimate, and certainty is (citing Chipman)).

Plaintiffs strain to distinguish these authorities. When confronted with the repeated

application of several liability in private nuisance cases, Plaintiffs say that public nuisance is

different. See Opp. at 12. When confronted with the same rule in public nuisance cases, Plaintiffs

assert that equitable claims instituted by the government are different. See Opp. at 5. But they

cite no authority for a special liability rule applicable only to equitable abatement actions brought

by the government, and such a rule would make little sense: Grossly disproportionate liability for

a public nuisance does not become more fair or rational just because the government seeks to

impose it. In any event, such a rule would not help Plaintiffs, because, as this Court has

Plaintiffs' damages,"
repeatedly ruled, public nuisance claims are ones "for not equitable relief,

pleadings."
and their continued suggestion otherwise "mischaracterize[s] their own NYSCEF

part[ies]" damages,"
No. 5636 at 3-4 (Plaintiffs are "essentially ... private seeking "to recover

Plaintiffs' abatement"
and attempt to recast their public nuisance claims as "equitable claims for

"mischaracterize their own pleadings"); see also NYSCEF 6522 at 2 ("The gravamen of the

Plaintiffs'
remedies sought in claims for public nuisance is for money, however denominated.").

Plaintiffs'
In short, neither common law nor common sense supports contention that any

defendant found liable must, no matter how slight its contribution, shoulder the entire cost of

a massive societal problem with complex and varied roots. common-

rectifying Rather, ordinary

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law rules and principles of fundamental fairness apply to public nuisance claims no less than any

other.3

II. Defendants are entitled to apportionment, including to third parties.

Those rules foreclose holding Defendants liable for thousands of discrete harms they did

not cause. Each Defendant can be held liable only to the extent of its contribution (if any) to

Plaintiffs'
injuries.

harms"
The common law requires apportionment when "there are distinct or any

harm."
"reasonable basis for determining the contribution of each [defendant] to a single

Restatement § 433A; see Restatement § 840E cmt. b ("As a practical matter, many nuisances are

capable of apportionment among two or more persons who contribute to them."). Here, the

asserted nuisance, acts or omissions that allegedly led to increased opioid abuse, encompasses

varied and distinct cases of addiction, overdose, family disruption, and more-each with its own

causes and consequences. Causal responsibility for such distinctive injuries must be apportioned,

impossible."
even if the "judgment is an estimate, and certainty is Schriver, 24 N.Y.S. at 1085 ;

accord Cayuga Indian Nation of New York v. Pataki, 79 F. Supp. 2d 66, 72 (N.D.N.Y. 1999);

Restatement (Second) of Torts § 433A cmt. b.

Moreover, even if the consequences of opioid abuse were a single injury, several liability

would still be mandated both because there are reasonable ways to apportion liability,

Restatement (Second) of Torts § 433A cmt. b, and because failure to permit apportionment

3
Plaintiffs have noted in prior briefing that a trial court in Oklahoma purported to hold
defendants Johnson & Johnson and Janssen liable for the entire cost of abating opioid abuse in

Oklahoma, despite Janssen's tiny share (less than 1%) of opioid pain medication prescriptions
and no evidence that Janssen's opioid medications were significantly diverted or abused. J&J and
Janssen have appealed that decision precisely because it is no more defensible under Oklahoma
Plaintiffs'
law than is position here under New York law. The Oklahoma trial court decision

obviously is not binding here; nor is it persuasive given the many New York authorities cited
here that flatly reject its approach.

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unfair,"
would be "fundamentally MTBE, 447 F. Supp. 2d at 303. The unprecedented allegations

in this case share nothing with nuisance cases imposing joint and several liability on a handful of

parties for joint negligence in endeavors like maintaining a wall. Rather, Plaintiffs here have

alleged that over a dozen nationwide pharmaceutical manufacturers, distributors, and pharmacies

conditions,"
have caused a public nuisance consisting of "[a] series of [eleven different]

disruption" trafficking."4
including everything from "family to "increased illegal drug In other

[alleged]"
words, Plaintiffs seek to impose sweeping liability not on "a small number of

injury,"
wrongdoers for a "single indivisible MTBE, 447 F. Supp. 2d at 298, 302, but on hand-

"series"
picked defendants for a diverse of social, economic, criminological, and public health

problems that have unfolded over decades with many different causes unrelated to defendants,

including the decision-making of doctors, patients, criminal actors, and even Plaintiffs

themselves.

unfair."
To impose joint and several liability in such a case would be "fundamentally Id.

at 303. Rather than combat the evil joint and several liability was meant to address-preventing

defendants from evading responsibility "merely because the nature of their conduct and the

harm,"
resulting harm made it difficult ... to prove which of them has caused the Restatement

(Second) of Torts § 433B(2) cmt. f-it would efface any connection between conduct and harm,

permitting grossly disproportionate liability relative to any defendant's actual fault. See

Chipman, 77 N.Y. at 53-54 (a rule permitting "one who did the least [to] be made liable for the

chargeable"
damages of others far exceeding the amount for which he really was cannot "be

upheld upon any sound principle of law"); Restatement (Second) of Torts § 433A cmt. b ("[O]ne

defendant"
cannot be "liable for the distinct harm inflicted by [an]other."); Cayuga Indian

4
See NYSCEF Doc. No. 2125 at 4-5; NYSCEF Doc. No. 2126 at 4-5.

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Nation of New York, 79 F. Supp. 2d at 72 ("[G]iven the relative equities and because it would be

fundamentally unfair to hold otherwise, the court refuses to find that the [defendant] is jointly

and severally liable for the entire amount of the damages sustained by the [plaintiffs].").

Indeed, the only New York courts to consider even remotely similar claims have refused

to impose joint and several liability. One rejected public nuisance liability entirely. See People ex

rel. Spitzer v. Sturm, Ruger & Co., Inc., 761 N.Y.S.2d 192 (1st Dep't 2003) (rejecting public

nuisance claim seeking to hold gun manufacturers liable for gun violence). The other two-A-1

Jewelry and MTBE-flatly rejected joint and several liability, except for purely injunctive relief

(which plaintiffs do not seek). See A-1 Jewelry & Pawn, Inc., 247 F.R.D. at 347; MTBE, 447 F.

Plaintiffs'
Supp. 2d at 303. claims are even more sweeping than the ones in those cases, seeking

to assign responsibility for a vast societal challenge with innumerable causes. This Court should

Plaintiffs'
follow those precedents and refuse bid to hold Defendants liable for injuries they did

not cause.

Consistent with this clear authority and well-settled principles of apportionment, the

Court must allow the jury to apportion the contributions not just of the defendants that Plaintiffs

strategically chose to name, but of all potential substantial causes, including the conduct of third

parties and of Plaintiffs themselves. As the Restatement (Second) of Torts explains, the

apportionment of responsibility among different contributing causes

appl[ies] whenever two or more causes have combined to bring

about harm to the plaintiff, and each has been a substantial factor in

producing the harm, .... They apply where each of the causes in
question consists of the tortious conduct of a person; and it is
immaterial whether all or any of such persons are joined as
defendants in the particular action. The rules stated apply also where
one or more of the contributing causes is an innocent one, as where
the negligence of a defendant combines with the innocent conduct
of another person, or with the operation of a force of nature, or with
a pre-existing condition which the defendant has not caused, to bring

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about the harm to the plaintiff. The rules stated apply also where one
of the causes in question is the conduct of the plaintiff himself,
whether it be negligent or innocent.

Restatement (Second) of Torts § 433A cmt. a; see Schriver, 24 N.Y.S. at 1084 (apportioning

drainage"
liability between defendant and "privies, mills, surface and other causes). The need to

account for third-party conduct and the effects of innocent causes is simply a corollary of the rule

contribution."
that no defendant can be held liable beyond the extent of "his own Restatement

(Second) of Torts § 840E.

Defendants'
Plaintiffs complain that the alternative causes listed in proposed verdict

session."
form "read[] ... like the fruits of a brainstorming Opp. at 15. But it is Plaintiffs who

brought an unprecedented civil action demanding to assign blame against cherry-picked

defendants for multi-dimensional social problems with intricate and heavily disputed causes.

They cannot now escape the complexities inherent in that endeavor by hiding alternative causes

from the jury and insisting on massive monolithic liability for any Defendant found liable for any

portion of their alleged injuries.

III. The jury must be allowed to apportion fault and liability in Phase I.

The necessary apportionment inquiry must occur during the Phase I liability trial.

"contribution"
Common-law apportionment turns on the extent of each Defendant's to the

relevant harms-that is, injuries a particular Defendant caused versus injuries that other

Defendants, Plaintiffs, or third parties caused. See, e.g., Restatement § 840E cmt. d (defendant

contribution" "extent"
liable "to the extent of his own (emphasis added)). The of any

"contribution"
Defendant's thus necessarily turns on the causation issues that will be tried as part

of the Phase I liability determination.

While Plaintiffs protest that apportionment is a damages question, New York law

intertwined."
disfavors bifurcation of liability and damages issues that are "inextricably Barron

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v. Terry ex rel. Povero, 702 N.Y.S.2d 171, 173 (3d Dep't 2000). In this case, where the

intertwined"
apportionment of damages is "inextricably with the causation questions that the jury

will determine in Phase I, it would be reversible to reserve apportionment for a later jury. See

Schwartz v. Binder, 457 N.Y.S.2d 109, 110 (2d Dept. 1982); Culley v. City of New York, 267

N.Y.S. 2d 282, 282-83 (1st Dep't 1966); cf Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293,

authority"
1302-03 (7th Cir. 1995) (Posner, J.) (finding that the "district judge has exceeded his

by "divid[ing] issues between separate trials in such a way that the same issue is reexamined by

Plaintiffs' 1411-
different juries"). For much the same reason, comparative fault under CPLR

"appl[ies]" claims,"
which this Court has made clear to their "public nuisance NYSCEF 5636, at

3-must be tried during Phase I as well, lest Defendants be required to retry (and a second jury

required to revisit) overlapping causation and fault issues in a Phase II damages trial. Such an

outcome would waste resources relitigating the same causation issues the Phase I jury will

determine, and will require a second jury to impermissibly reexamine its causation findings.

CONCLUSION

For the foregoing reasons, the Court should have the Phase I jury apportion liability and

Plaintiffs'
comparative fault using the verdict form proposed by Defendants.

Respectfully submitted:

Dated: July 14, 2020

New York, New York

/s/ Charles C. Lifland

Charles C. Lifland (admitted pro hac vice)
Sabrina Strong (admitted pro hac vice)
O'MELVENY & MYERS LLP

400 S. Hope Street

Los Angeles, CA 90071

(213) 430-6000
clifland@omm.com

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sstrong@omm.com

Stephen D. Brody (admitted pro hac vice)

O'MELVENY & MYERS LLP

1625 Eye Street NW

Washington, DC 20006

(202) 383-5300
sbrody@omm.com

Ross Galin
Nathaniel Asher
O'MELVENY & MYERS LLP
7 Times Square
New York, NY 10036

(212) 326-2000
rgalin@omm.com
dfranklin@omm.com
nasher@omm.com

Vincent J. Messina Jr.

SINNREICH KOSAKOFF & MESSINA, LLP
267 Carleton Avenue, Ste. 301
Central Islip, New York 11722

(631) 650-1200
vmessina@skmlaw.net

Attorneys for Johnson & Johnson, Janssen

Ortho-McNeil- Janssen
Pharmaceuticals, Inc.,
Pharmaceuticals, Inc. n/k/a Janssen

Pharmaceuticals, Inc., and Janssen Pharmaceutica,

Inc. n/k/a Janssen Pharmaceuticals, Inc.

/s/ Ingo W Sprie, Jr.

Ingo W. Sprie, Jr.
James D. Herschlein

Julie K. du Pont
Andrew K. Solow
ARNOLD & PORTER KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019-9710

(212) 836-8000
ingo.sprie@arnoldporter.com
james.herschlein@arnoldporter.com
julie.duPont@arnoldporter.com
andrew.solow@arnoldporter.com

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Peter R. McGreevy
McGreevy & Henle, LLP
131 Union Avenue

Riverhead, NY 11901

(631) 369-7200
peter.mcgreevy@gmail.com

Counsel for Endo Health Solutions Inc.,

Endo Pharmaceuticals Inc., Par Pharmaceutical,
Inc., and Par Pharmaceutical Companies, Inc.

/s/ Martha A. Leibell

Martha A. Leibell
Brian M. Ercole (admitted pro hac vice)
MORGAN, LEWIS & BOCKIUS LLP

200 S. Biscayne Blvd., Suite 5300

Miami, FL 33131

T: +1.305.415.3000
F: +1.305.415.3001
martha.leibell@morganlewis.com
brian.ercole@morganlewis.com

Harvey Bartle IV (admitted pro hac vice)

Mark A. Fiore (admitted pro hac vice)
1701 Market Street

Philadelphia, PA 19103-2921

(215) 963-5000
harvey.bartle@morganlewis.com
mark.fiore@morganlewis.com

Nancy L. Patterson (admitted pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP

1000 Louisiana Street, Suite 4000

Houston, TX 77002-5005

(713) 890-5195
nancy.patterson@morganlewis.com

Pamela C. Holly

MORGAN, LEWIS & BOCKIUS LLP

101 Park Avenue
New York, NY 10178-0060

(212) 309-6000
pamela.holly@morganlewis.com

Attorneys for Defendants Cephalon, Inc., Teva

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Pharmaceuticals USA, Inc., Watson Laboratories,

Inc., Actavis LLC, and Actavis Pharma, Inc. f/k/a
Watson Pharma, Inc.

/s/ Jennifer G. Levy

Jennifer G. Levy, P.C.
Catie Ventura
KIRKLAND & ELLIS LLP
1301 Pennsylvania Avenue, NW
Washington, D.C. 20004

(202) 389-5000
jennifer.levy@kirkland.com
catie.ventura@kirkland.com

Donna Welch, P.C. (admitted pro hac vice)

Timothy Knapp (admitted pro hac vice)
KIRKLAND & ELLIS LLP

300 North LaSalle

Chicago, Illinois 60654

Tel: (312) 862-2000

donna.welch@kirkland.com
timothy.knapp@kirkland.com

Attorneys for Allergan Finance, LLC

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