FILED: SUFFOLK COUNTY CLERK 06/29/2020 10:34 PM INDEX NO.

400000/2017
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

Index No. 400000/2017 E

IN RE OPIOID LITIGATION
Hon. Jerry Garguilo

MEMORANDUM IN SUPPORT OF DISTRIBUTORS’ MOTION FOR

APPORTIONMENT OF CAUSATION AND RESPONSIBILITY AT TRIAL

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 3

I. DISTRIBUTORS MAY NOT BE HELD JOINTLY AND SEVERALLY

LIABLE FOR INJURIES THAT THEY DID NOT CAUSE. ........................................... 3

A. New York Law ........................................................................................................ 3

B. Due Process........................................................................................................... 12

II. DISTRIBUTORS ARE ENTITLED TO A VERDICT SHEET THAT

ALLOCATES RESPONSIBILITY FOR CAUSING THE ALLEGED INJURIES
AMONG PLAINTIFFS, CO-DEFENDANTS, AND OTHERS. ..................................... 14

CONCLUSION ............................................................................................................................. 21

ii

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TABLE OF AUTHORITIES

Page(s)

Cases

In re Adler,
395 B.R. 827 (E.D.N.Y. 2008) ................................................................................................16

Bennett v. Cupina,
253 N.Y. 436 (1930) ..................................................................................................................9

Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc.,
344 F.3d 211 (2d Cir. 2003).....................................................................................................18

Bonanni v. Horizons Inv’rs Corp.,

179 A.D.3d 995 (2d Dep’t 2020) ...............................................................................................7

Cabrera v. A-To-Z Signs,

28 N.Y.S.3d 567 (Sup. Ct. Westchester Cty. 2016).................................................................16

Cayuga Indian Nation of New York v. Pataki,

79 F. Supp. 2d 66 (N.D.N.Y. 1999) .........................................................................................15

Chipman v. Palmer,
77 N.Y. 51 (1879) ............................................................................................................ passim

Dounce v. City of Elmira,

237 A.D. 379 (3d Dep’t 1932) ...................................................................................................9

Honda Motor Co. v. Oberg,

512 U.S. 415 (1994) .................................................................................................................12

Irvine v. Wood,
51 N.Y. 224 (1872) ....................................................................................................................6

Kharmah v. Metro. Chiropractic Ctr.,

288 A.D.2d 94 (1st Dep’t 2001) ..............................................................................................16

Klein v. Town of Pittstown,

241 A.D. 202 (3d Dep’t 1934) ...................................................................................................9

Lawatsch v. City of Kingston,

124 N.Y.S. 578 (N.Y. Sup. Ct., Ulster Cty. 1910)...................................................................15

Malone v. Cty. of Suffolk,

8 N.Y.S.3d 408 (2d Dept. 2015) ................................................................................................9

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McNulty v. Ludwig & Co.,

138 N.Y.S. 84 (2d Dept. 1912) ..................................................................................................6

Nordone v. Mondo,
269 A.D. 896 (4th Dep’t 1945) ................................................................................................15

Osorio v. Dole Food Co.,

665 F. Supp. 2d 1307 (S.D. Fla. 2009), aff’d sub nom. Osorio v. Dow Chem.
Co., 635 F.3d 1277 (11th Cir. 2011) ........................................................................................13

Ponderosa Pines, Inc. v. Queens Farm Dairy, Inc.,

48 A.D.2d 760 (4th Dep’t 1975) ................................................................................................4

In re Pub. Beach, Borough of Queens, City of New York,

248 A.D. 902 (2d Dep’t 1936), aff’d sub nom.Matter of City of New York, 274
N.Y. 536 (1937) .........................................................................................................................9

Ravo v. Rogatnick,
70 N.Y.2d 305 (1987) ...................................................................................................... passim

Rodriguez v. City of New York,

31 N.Y.3d 312 (2018) ................................................................................................................3

Roebuck v. Duprey,
274 A.D.2d 620 (3d Dep’t 2000) .......................................................................................17, 18

Said v. Assaad,
289 A.D.2d 924 (4th Dep’t 2001) .................................................................................... passim

Schriver v. Village of Johnstown,

24 N.Y.S. 1083 (3d Dep’t 1893), aff’d, 148 N.Y. 758 (1896) ...........................................15, 16

Schultz v. Excelsior Orthopaedics, LLP,

129 A.D.3d 1606 (4th Dep’t 2015) ..........................................................................................17

Simmons v. Emmerson
124 N.Y. 319 (1981) ..................................................................................................................6

Steed v. Bain-Holloway,
356 P.3d 62 (Okla. Civ. App. 2015) ........................................................................................13

United States v. Imperial Irrigation Dist.,

799 F. Supp. 1052 (S.D. Cal. 1992) .........................................................................................15

Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) .................................................................................................................13

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Van Steenburgh v. Tobias,

1837 WL 2824, 17 Wend. 562 (N.Y. Sup. Ct. 1837) ..........................................................4, 12

Variable–Parameter Fixture Dev. Corp. v. Morpheus Lights, Inc.,

945 F. Supp. 603 (S.D.N.Y. 1996)...........................................................................................16

Wallace v. Drew,
1871 WL 11311 (N.Y. Sup. Ct. Mar. 6, 1871) ........................................................................15

Wangyal v Robrose Place, L.L.C.,

2018 WL 4207095 (N.Y. Sup. Ct. Sept. 4, 2018) ......................................................................6

Wingert v. Hradisky,
131 N.E.3d 535 (Ill. 2019) .......................................................................................................13

In re Zyprexa Prod. Liab. Litig.,

489 F. Supp. 2d 230 (E.D.N.Y. 2007) .....................................................................................20

Other Authorities

CPLR article 14-A ...........................................................................................................................3

Restatement (Second) of Torts § 433A ....................................................................................20, 21

Restatement (Third) of Torts: Apportionment Liab. § 26 (2000) ..................................................20

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AmerisourceBergen Drug Corporation, Cardinal Health, Inc. and McKesson Corp.

(“Distributors”) submit this memorandum in support of their motion for apportionment of liability

at trial.

INTRODUCTION

The State of New York, Nassau County, and Suffolk County (“Plaintiffs”) previously

sought a ruling from this Court that the entire “opioid crisis” is a “public nuisance” for which all

Defendants are jointly and severally liable. Ex. 1,1 NYSCEF No. 2557. This Court correctly

denied that motion, recognizing that “the application of joint and several liability depends on the

evidence presented at trial.” Ex. 2, NYSCEF No. 5656. While the Court stated that “generally,

under New York law, anyone who creates, contributes to, or maintains a public nuisance is jointly

and severally liable for the consequences thereof,” id. at 2, all of the authorities cited by the Court

apply only where the plaintiff alleges and proves a single, indivisible injury. Where the plaintiff

suffers discrete or divisible injuries, a defendant generally may be liable for only the separate

injury or injuries that the defendant’s own conduct caused.

The evidence at trial will establish, and Plaintiffs’ own allegations and expert testimony

show, that the “opioid epidemic” or “opioid crisis” is not a single, indivisible injury. Rather,

Plaintiffs sweep under those labels myriad different harms—each with their own discrete causes—

that occurred in different places and involved different actors over a period of more than 20 years.

For example, Distributors’ alleged wrongful conduct (according to Plaintiffs) consists of failing to

prevent diversion, or the transfer of opioid medicines to illicit channels. Even assuming arguendo

that public nuisance liability could be imposed on ABDC, Cardinal, or McKesson for failing

1
All Exhibit citations reference the Affirmation of Christian J. Pistilli, dated June 29, 2020, and
filed herewith.

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adequately to monitor a pharmacy in Plattsburgh in 1995,2 any injury arising from diversion by

that pharmacy or its customers is independent and separable from injuries arising out of, for

example (1) the use of illicit heroin by a Queens resident in 2020, (2) the failure of Rochester Drug

Cooperative (“RDC”) adequately to monitor a pharmacy in Saratoga Springs in 2015, or (3) the

2010 addiction of a Buffalo resident who was lawfully prescribed opioids in good faith by his

doctor. Established New York law (and fundamental principles of due process) preclude Plaintiffs

from imposing liability on Distributors for such distinct injuries that they did not cause.

For these reasons, and as further explained below, Distributors are entitled to (1) a verdict

form that permits the jury to allocate liability among injuries caused by each Defendant’s wrongful

conduct, injuries caused by the wrongful conduct of Plaintiffs or third parties, and injuries caused

by the wrongful conduct of no one, and (2) a ruling that Distributors are not jointly and severally

liable for distinct injuries that the jury determines their wrongful conduct did not cause.3 Just as

the law does not allow the State to hold a party who dumped agricultural waste into Lake Erie

liable for industrial waste from a separate source found in New York Harbor 20 years later based

on the theory that the party “contributed to” an overall “crisis of water pollution,” the State may

not hold Distributors liable for injuries they did not cause on the theory that they contributed to an

overall “opioid crisis.”4

2
In fact, Distributors could not be held liable for any such conduct, among other reasons, because
Plaintiffs may not rely on evidence of conduct that occurred outside the three-year statute of
limitations—or before June 12, 2014—to prove that Distributors are causing a present-day public
nuisance. See Exs. 3, 4, NYSCEF Nos. 2915, 3953.
3
While the final list will be subject to the presentation of evidence at trial, attached hereto as
Appendix A is a list of the entities that Distributors currently believe should be listed on the verdict
sheet. Attached hereto as Appendix B is the accompanying instruction that Distributors request
be given to the jury.
4
Separate and apart from the arguments set forth herein—and as this Court already recognized in
denying Plaintiffs’ motion to dismiss affirmative defenses—Defendants are entitled to a verdict

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ARGUMENT

I. DISTRIBUTORS MAY NOT BE HELD JOINTLY AND SEVERALLY LIABLE

FOR INJURIES THAT THEY DID NOT CAUSE.

Holding Distributors jointly and severally liable for discrete injuries that they did not cause

would violate both New York law and due process.

A. New York Law

It is a fundamental and long-standing proposition of New York law that a defendant can be

liable only for injuries that it caused. See, e.g., Chipman v. Palmer, 77 N.Y. 51, 53 (1879) (there

is “no reason why one tortfeasor should be liable for the act of others who have no association and

do not act in concert with him”); Ponderosa Pines, Inc. v. Queens Farm Dairy, Inc., 48 A.D.2d

form that permits the jury to allocate fault to Plaintiffs. Ex. 5, NYSCEF No. 5636 (denying
Plaintiffs’ motion to dismiss Defendants’ comparative fault defenses and recognizing “if a
governmental entity institutes a suit for damages like a private litigant, it seems inequitable to the
court to deny the defendant a defense or defenses which could be available against another
plaintiff”); see also Rodriguez v. City of New York, 31 N.Y.3d 312, 318 (2018) (discussing CPLR
article 14-A). There is ample evidence from which the finder of fact could conclude that
Plaintiffs—and in particular the State—were a substantial cause of any injuries associated with the
opioid epidemic. See, e.g. Ex. 6, Suffolk County Special Grand Jury Report, dated April 17, 2020,
at 17 (criticizing Suffolk County for not employing an epidemiologist in the Medical Examiner’s
Office), 47 (criticizing State’s Bureau of Narcotic Enforcement (“BNE”) for not sharing
prescription drug information with other law enforcement agencies), 48 (criticizing State for not
providing dispensers with prescription monitoring data), 50–52 (criticizing BNE and State Office
of Professional Misconduct (“OPMC)” for not cooperating with each other, even though such
cooperation “is critical to fight opioid abuse, addiction, and diversion”), 52–54 (criticizing State
for not mandating e-prescribing of controlled substances), 55 (criticizing State for not requiring
training before doctors can prescribe controlled substances); Ex. 7, “Has Suffolk County Really
Turned ‘The Corner’?”, Newsday, January 10, 1989 (“marijuana and heroin were allowed by
police and [Suffolk] county officials to become the primary commodity sold” at “The Corner,” a
shopping center in North Amityville); Ex. 7A, NYSCEF Nos. 6140 (so-ordered stipulation with
Counties that article attached as Exhibit 7 meets business records exception of the rule against
hearsay); Ex. 8, Eichhorn Dep. Tr. at 264:13–267:17 (testifying that Nassau probation officers
failed to follow procedures, that as a result, fewer drug dealers were arrested; also noted that
training was not provided because “there’s no training for ... laziness”); Ex. 9, Pain Management,
A Guide for Physicians (guidance by State to physicians recommending the prescription of
opioids); Ex. 10, Pain Management, A Guide for Patients (same).

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760 (4th Dep’t 1975) (defendant who converted plaintiff’s property cannot be liable for another

defendant’s conversion of different property); Van Steenburgh v. Tobias, 1837 WL 2824, 17

Wend. 562, 563 (N.Y. Sup. Ct. 1837) (it would be “repugnant to the plainest principles of justice”

to hold one defendant liable for the injury done by another defendant).

Chipman is especially instructive.5 There, the plaintiff alleged that the defendant had

contributed to a nuisance by discharging sewage into a stream that ran adjacent to the plaintiff’s

property. See Chipman, 77 N.Y. at 53. The evidence at trial showed that, in addition to the

defendant, a number of third parties also discharged sewage into the stream before it reached the

plaintiff’s property. See id. The plaintiff argued that the defendant was jointly and severally liable

for the entirety of the nuisance, based on the supposed principle that “where one contributes to the

production of a nuisance, he is chargeable with all the damages.” Id. at 54. The New York Court

of Appeals squarely rejected that argument, holding that the defendant “was not liable beyond the

extent of the wrong which he had committed, nor for the injury which other parties had

contributed to produce.” Id. at 53.6 As the Court explained:

5
Though decided in the Nineteenth Century, Chipman remains good law. See, e.g., Ravo v.
Rogatnick, 70 N.Y.2d 305, 312 (1987) (citing Chipman favorably for the principle that
independent tortfeasors are not jointly and severally liable for divisible injuries); Ponderosa Pines,
Inc. v. Queens Farm Dairy, Inc., 48 A.D.2d 760, 760 (4th Dep’t 1975) (citing Chipman favorably
and holding defendants were not jointly and severally liable for converting plaintiff’s property).
6
Unless otherwise noted, all emphases are added and citations omitted.

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The right of the plaintiff to recover of the defendant all the damages which he had
sustained by reason of the nuisance I think cannot be maintained. The injury was
not caused by the act of the defendant alone, or by that of others who were acting
jointly or in concert with the defendant. It was occasioned by the discharge of
sewerage from the premises of the defendant and other owners of lots into the creek
separately and independently of each other…. The defendant’s act, being several
when it was committed, cannot be made joint because of the consequences which
followed in connection with others who had done the same or a similar act.

Id. at 53. Thus, where the “separate and independent” actions of different persons all contribute

to a plaintiff’s alleged injury, no defendant can be held jointly liable for the acts of co-defendants

or third parties whose actions “severally and independently may have contributed to the injury.”

Id. As the Court of Appeals explained, any other rule could unfairly and improperly lead to “the

one who did the least” being “made liable for the damages of others far exceeding the amount for

which he really was chargeable, without any means to enforce contribution or to adjust the amount

among the different parties.” Id. at 53–54.

There are only two narrow exceptions to this bedrock principle of New York law. First,

where two or more defendants act “in concert to produce a single injury, they may be held jointly

and severally liable.” Ravo, 70 N.Y.2d at 309. Here, however, Plaintiffs have taken the position

that evidence relating to concerted action is “irrelevant” to their nuisance claim and have disclosed

no discovery on that topic.7 Because there is no record evidence from which the finder of fact

reasonably might conclude that Distributors acted in concert with one another or their co-

defendants, there is no basis for imposing joint and several liability based on a concerted action

7
See, e.g., Ex. 11, Suffolk’s Resp. to Distributors’ Fourth Set of Interrogs, dated March 2, 2020,
Rog 27 (failing to identify any evidence that Distributors acted in concert with other Defendants
and referencing Plaintiffs’ summary judgment briefing); Ex. 12, NYSCEF No. 3715 (Pl.’ Summ.
J. Br.) at 24 (“[C]oncerted action allegations are relevant only to [Plaintiffs’] non-nuisance causes
of action”), 24–25 (disclosing no evidence of concerted action but instead stating “whether the
Counties have evidence supporting their concerted action allegations is not an issue that is ripe at
this time.”).

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theory—and certainly no basis to hold Distributors liable for the entirety of the “opioid crisis” on

a concerted action theory.8

Second, where a plaintiff suffers a “single indivisible injury”—that is, an injury “incapable

of any reasonable or practicable division or allocation”—liability may be joint and several. Id.

at 310. For example, in Simmons v. Emerson, the three defendants owned and controlled separate

portions of a “continuous brick wall” that they negligently failed to remove after a fire rendered

the wall unsafe. 124 N.Y. 319, 319 (1891). That single brick wall then collapsed and killed a

passerby. Id. On those facts, liability was joint and several because the defendants’ negligence

caused a single indivisible injury—i.e., the death of the passerby. Id. at 320; see also Said v.

Assaad, 289 A.D.2d 924, 928 (4th Dep’t 2001) (noting single “death cannot be divided or

apportioned”).9

8
Given their refusal to provide discovery on the topic of concerted action, Plaintiffs should be
precluded from putting on any such evidence at trial. If evidence potentially establishing concerted
action were presented at trial, however, the question whether any Distributor acted in concert
would be for the jury to decide. See, e.g., Wangyal v Robrose Place, L.L.C., No. 507954/13, 2018
WL 4207095, at *7 (N.Y. Sup. Ct. Sept. 4, 2018) (denying summary judgment on the issue of
concerted action because “[t]he trier of fact may find that all defendants acted in concert; then
again, it may not”). Even assuming arguendo that Plaintiffs could prove instances of concerted
action, a Distributor could only be held liable for the discrete injuries caused by that Distributor
and/or those with whom that Distributor acted in concert to cause those particular injuries.
9
This Court has cited Simmons and other cases for the proposition that “generally, under New
York law, anyone who creates, contributes to, or maintains a public nuisance is jointly and
severally liable for the consequences thereof.” Ex. 2, NYSCEF No. 5656, at 2. In both Simmons
and the other cited cases, however, the defendants’ conduct caused the plaintiff a single indivisible
injury. See Irvine v. Wood, 51 N.Y. 224, 224 (1872) (landlord and tenant jointly liable for single
indivisible injury caused by “coal hole” appurtenant to the property that they respectively owned
and leased when the plaintiff fell into the hole); McNulty v. Ludwig & Co., 138 N.Y.S. 84, 85 (2d
Dept. 1912) (owner and installer of sign jointly and severally liable for single indivisible injury to
plaintiff caused by the sign when it fell on him); see also Restatement (Second) of Torts § 433A
(1965), comment i (“Where two or more causes combine to produce such a single result, incapable
of division on any logical or reasonable basis, and each is a substantial factor in bringing about the
harm, … each of the causes is charged with responsibility for the entire harm.” (emphasis added)).

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By contrast, where a plaintiff’s injury is “divisible,” the defendant cannot be liable beyond

the “separate injury or the aggravation his conduct has caused.” Ravo, 70 N.Y.2d at 312 (whether

to charge jury that liability was joint and several depends on whether injuries were divisible);

accord Bonanni v. Horizons Inv’rs Corp., 179 A.D.3d 995, 1003 (2d Dep’t 2020) (affirming

decision not to impose joint and several liability because “the court was able to determine the

proportions in which the defendants profited”); Said, 289 A.D.2d at 926–27 (applying principle

that “joint and several liability should not be imposed whenever injuries are separate and distinct

and may be differentiated with respect to their causation”). Here, Plaintiffs seek to hold

Distributors jointly and severally liable for the entirety of the “opioid epidemic” in the State of

New York (and the Plaintiff Counties). But the myriad individual instances of opioid use and

abuse—and any attendant instances of addiction or overdose—that comprise the “opioid

epidemic” plainly do not constitute a “single indivisible injury” to Plaintiffs (or anyone). On the

contrary, each individual instance of opioid use and abuse is a separate injury—each with its own

cause or causes. As a matter of blackletter New York law, Plaintiffs may not wrap those separate

and discrete injuries with the “opioid epidemic” label and thereby hold Distributors liable for every

overdose or addiction in the State of New York, including those that have no causal nexus with

Distributors’ alleged wrongdoing.10

10
In fact, as Plaintiffs themselves acknowledge, the “opioid crisis” identified in their complaints
consists of at least two distinct “crises”: (i) a “crisis” of prescription opioid abuse, and (ii) a
“crisis” of illegal, non-prescription opioid abuse. See, e.g., Ex. 13, NYSCEF No. 17
(400016/2018), State’s First Amended Complaint ¶¶ 9–17 (alleging a first “wave” of abuse
consisting of prescription opioid abuse and subsequent “wave[s]” consisting of heroin and illicit
fentanyl abuse). At a minimum, Distributors respectfully submit that they are entitled to jury
instructions and a verdict sheet that distinguishes between prescription and non-prescription opioid
abuse. Even if the jury were to conclude that Distributors played some culpable role with respect
to prescription opioids, it could readily conclude that they were not legally responsible for the
illicit use of heroin or non-prescription fentanyl.

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Consider, for example, the patient whose tragic death is featured in the third paragraph of

the State’s complaint as emblematic of the “opioid epidemic.” According to the State, she was

originally prescribed opioids after a 2017 surgery, became addicted to prescription opioids,

transitioned to illicit heroin, and ultimately died of a heroin overdose. See Ex. 13, State’s Compl.

¶ 3. Through its complaint, the State seeks to hold Distributors liable for her addiction and death—

along with the addictions of thousands of other people, each with their own distinct stories. But

discovery in this case is now nearly closed, and there is not a shred of evidence that

AmerisourceBergen, Cardinal Health, or McKesson are causally connected in any way to that

patient. See, e.g., Ex. 14, State’s Third Supp. Resp. & Obj. to Distributor’s Interrogs., dated

January 10, 2020 (admission by State that it cannot identify a single New York resident who

suffered an opioid-related personal injury because of conduct attributable to Distributors).

As the State acknowledges, the patient was prescribed opioids by a licensed healthcare

provider. See Ex. 13, State’s Compl. ¶ 3. If that prescription was medically appropriate, then her

addiction, while tragic, did not result from wrongdoing by anyone—let alone Distributors. As

their FDA-approved labels make plain, opioid medicines pose a risk of addiction, yet it is

undisputed that in certain circumstances they are appropriately prescribed. In the case of a

medically-appropriate opioid prescription, a prescriber does nothing wrong in writing the

prescription, a pharmacist does nothing wrong in filling the prescription, and (a fortiori) a

wholesale distributor does nothing wrong in delivering to the pharmacy the pills needed in order

to fill the prescription—even though addiction is a known possible result of that (and every)

prescription. As regards medically appropriate prescriptions, any harm that results from addiction

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is said to be damnum absque injuria—loss without legal injury—and is unrecoverable as a matter

of law.11

Assuming instead that the patient’s prescription was not medically appropriate, then it is

possible that an error in judgment by the prescriber was a legal cause of the patient’s addiction.

But Distributors could not be liable for that error in judgment. Unlike the State, Distributors have

no duty and no ability to police the good-faith prescribing decisions of licensed healthcare

providers. Accordingly, any injury resulting from such prescriptions was damnum absque injuria

as to Distributors—even if one of them delivered the pills used to fill the patient’s prescription.12

To be sure, Plaintiffs allege that Manufacturer marketing (principally by non-party

Purdue13) overstated the benefits and understated the risks of opioids, thereby changing the

standard of care for the treatment of pain. If the patient’s doctor unwittingly wrote a medically

inappropriate prescription based on an inappropriately-changed standard of care, then (according

11
See Bennett v. Cupina, 253 N.Y. 436, 438 (1930) (injuries resulting from water flowing from
defendant’s land were not actionable because the “water is not cast by drains or ditches upon
adjoining premises and thus the injury is damnum absque injuria”); In re Pub. Beach, Borough of
Queens, City of New York, 248 A.D. 902, 903 (2d Dep’t 1936) (reducing liability for portion of
injury that was damnum absque injuria), aff’d sub nom. Matter of City of New York, 274 N.Y. 536
(1937); Klein v. Town of Pittstown, 241 A.D. 202, 203 (3d Dep’t 1934) (“The injury which plaintiff
suffered by the water and material coming onto his land gave him no right of action. It was damnum
absque injuria.”); Dounce v. City of Elmira, 237 A.D. 379, 382 (3d Dep’t 1932) (“[I]t must be
held that the acts of the city here complained of were legal, and that if any damages resulted
therefrom to the plaintiffs, such were damnum absque injuria.”).
12
Even where a healthcare provider knowingly and intentionally writes a medically inappropriate
prescription, the prescriber’s negligence cannot give rise to a cause of action for public nuisance
because doctors do not owe a duty running “to the general public” to refrain from writing medically
inappropriate opioid prescriptions. See Malone v. Cty. of Suffolk, 8 N.Y.S.3d 408, 409 (2d Dept.
2015) (reversing trial court’s conclusion that doctor “owed a duty to the general public … to refrain
from overprescribing addictive drugs in an ‘irresponsible and potentially criminal manner’”).
13
According to Plaintiffs themselves, Purdue was the principal cause of the “opioid epidemic.”
Ex. 13 ¶ 5 (“The taproot of the opioid epidemic is easy to identify: [Purdue’s] OxyContin.”). As
alleged “successive tort-feasor[s],” Distributors may be held liable only “for the separate injury or
the aggravation [their] conduct has caused.” Ravo, 70 N.Y.2d at 310.

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to Plaintiffs) her addiction may be attributable in part to the Manufacturer marketing. But whatever

the merits of that causal theory as to Manufacturers, it does nothing to show that Distributors

caused or contributed to her addiction. Plaintiffs admit that Distributors played no role in any

Manufacturer’s allegedly fraudulent marketing.14 And Distributors’ allegedly wrongful conduct—

i.e., failing to prevent diversion—could not possibly be a cause of the patient’s injury because her

addiction stems not from diverted opioids but from pills lawfully obtained pursuant to a bona fide

prescription.

Nor is there any evidence that Distributors played a role in the overdose of the patient

discussed in the State’s complaint. As the complaint makes clear, the patient featured in the State’s

complaint overdosed on illicit heroin, not the FDA-approved prescription medicines that

Distributors deliver to State-licensed pharmacies. See Ex. 13 ¶ 3. There is no allegation—and

certainly no evidence—that Distributors were part of the supply chain for those illegal narcotics.

Nor, even, is there any record evidence that Distributors delivered the prescription opioid pills that

were prescribed and dispensed to her by State-licensed professionals—and, as the record makes

clear, RDC and other non-party wholesalers distributed a substantial portion of the opioids in New

York State.15 Accordingly, there is no evidence that Distributors played any role whatsoever in

14
See, e.g., Ex. 15, State’s Fourth Supp. Resp. & Objs. to Distributor Defs.’ Interrogs., dated
January 24, 2020, Rog 28 (identifying no false statements related to marketing in response to
interrogatories requesting Plaintiffs to identify false statements by Distributor Defendants); see
also Ex. 16, Lembke Rep. § 3 (opining about Manufacturer marketing without mentioning
Distributors); Ex. 17, Lembke (MDL 2804) Dep. Tr. at 275:7–13 (“Q. When you reference
misleading or false marketing material and attribute it to the pharmaceutical opioid industry … are
you referring to the distributors that have been named as defendants in this case? A. No.”); Ex. 18,
Kessler Rep. ¶¶ 74-588 (opining about Manufacturer marketing without mentioning Distributors);
see also Ex. 19, NYSCEF No. 5207 (Pl.s’ Memo. of Law in Opp. to Defs.’ Mot. for Summ. J.
Regarding Proof of Causation), 18–38 (detailing Manufacturers’ alleged marketing campaign
without discussing Distributors).
15
See Ex. 20, Keller Rep. ¶ 43 (admission by Plaintiffs’ expert that RDC and other non-parties
distributed over 15% of opioids in New York); see also Ex. 13, State’s Compl. ¶ 765 (alleging

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the patient’s addiction or overdose—much less that Distributors’ wrongful conduct resulted in that

overdose. The State therefore may not seek to hold Distributors liable for her addiction and

overdose. See, e.g., Chipman, 77 N.Y. at 51 (“each [defendant] is liable only to the extent of the

wrong committed by him”).

Plaintiffs undoubtedly will respond that they do not intend to prove causation or injury on

an individualized basis, but instead seek to avoid the difficulty of demonstrating causation through

the use of so-called “aggregate proof.” See Ex. 19 at 13–15. Neither the use of “aggregate proof”

nor the lumping of discrete actions and events under the “opioid crisis” umbrella, however, does

anything to establish that each Plaintiff has suffered a “single indivisible injury.” They manifestly

have not. Even assuming, for instance, that the State could prove that a particular pharmacy in

Albany was dispending opioids in the absence of a bona fide prescription and that the Distributor

that supplied the pharmacy failed appropriately to monitor the pharmacy, any injury resulting from

diversion by that pharmacy plainly is separable and severable from injuries resulting from, for

instance (i) diversion by a different pharmacy, supplied by a different wholesale distributor, a

decade later, in Staten Island, (ii) a patient’s use of prescription opioids in accordance with her

doctor’s good-faith prescribing in Oyster Bay,16 (iii) the heroin overdose of an addict in Ithaca

who was never prescribed opioids by a doctor,17 or (iv) the administration of opioids to a patient

diversion occurring at pharmacies supplied by RDC). It is beyond legitimate dispute that a given
Distributor cannot be liable for injuries stemming from prescription opioids that they never
touched.
16
As discussed above, a patient’s use of prescription opioids in accordance with a doctor’s good-
faith prescription is, at least as to Distributors, damnum absque injuria. See supra note 11 and
accompanying text.
17
See Ex. 16, Lembke Rep. § 8(g)(iv) (admission by Plaintiffs’ expert that no less than 25% of
opioid users were first exposed to illicit opioids rather than the prescription opioids that

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in Montauk by a Suffolk County ambulance driver.18 Because the separate injuries that underlie

Plaintiffs’ claims are discrete and capable of division, Plaintiffs may not seek to hold Defendants

jointly and severally liable for the entirety of the “opioid crisis”—even assuming arguendo that it

would be “difficult” for Plaintiffs to separate their injuries. See, e.g., Chipman, 77 N.Y. at 53 (“It

is true, that it is difficult to separate the injury; but that furnishes no reason why one tort feasor

should be liable for the act of others who have no association and do not act in concert with him.”

(emphasis omitted)).

B. Due Process

To hold Distributors jointly and severally liable for discrete harms they did not cause would

not only violate New York law, but would be so “repugnant to the plainest principles of justice,”

Van Steenburgh, 17 Wend. at 563, as to violate due process. “[T]he basic procedural protections

of the common law” are “fundamental,” and any “abrogation of a well-established common-law

protection … raises a presumption that its procedures violate the Due Process Clause.” Honda

Motor Co. v. Oberg, 512 U.S. 415, 430 (1994). The tort element of causation is one of those

“fundamental” protections, having been recognized as “a standard requirement of any tort claim.”

Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013) (“Causation in fact—i.e., proof

that the defendant’s conduct did in fact cause the plaintiff’s injury—is a standard requirement of

any tort claim.”). Indeed, “proof of causation” is so fundamental that courts have found it would

Distributors deliver to pharmacies). There is no basis on which to infer that a substantial portion
of opioid addicts who become addicted by using heroin ever go on to use prescription opioids.
18
Because opioids are a necessary part of emergency medicine, Suffolk County requires
ambulances to possess prescription fentanyl and morphine, for use during medical emergencies,
including heart attacks and intubation. See Ex. 21, DiPrima Dep. Tr. at 47:14–48:22.

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be “difficult to conceive of a civil liability statute more unreasonable or arbitrary” than one that

would permit liability without proof of causation.19

An analogy may help illustrate why it would violate due process to hold a party liable for

discrete harms the party did not cause. If agricultural runoff from a farm pollutes Lake Erie, the

farm’s owner may be liable for a public nuisance thereby created. And if the contemporaneous

actions of others combined with the farmer’s wrongdoing to create a single indivisible injury, the

farmer may be held jointly and severally liable for the entirety of that injury. But the farmer could

not be held jointly and severally liable for other, discrete injuries that the farmer played no role in

causing. For example, the farmer could not—consistent with due process and fundamental

fairness—be held jointly and severally liable for pollution that was caused twenty years later when

a factory in Brooklyn dumps industrial waste in New York Harbor.20

Yet that is precisely what Plaintiffs seek to do here. They seek to hold Distributors liable

for discrete injuries that Distributors played no role in causing. To be sure, they lump all of those

injuries together under the “opioid crisis” label, but doing so does not convert what are

fundamentally distinct and divisible harms into a single injury for which Distributors may be held

jointly and severally liable. Just as the State could not hold the farmer on Lake Erie liable for

pollution caused by the factory in Brooklyn based on the theory that he “contributed to” a “water

19
Wingert v. Hradisky, 131 N.E.3d 535, 544 (Ill. 2019) (statutory provision unconstitutional
because it would permit “a person injured by another person’s illegal drug use to recover
substantial economic damages from persons having no connection to or nexus to that drug use”);
Steed v. Bain-Holloway, 356 P.3d 62, 68 (Okla. Civ. App. 2015) (same); Osorio v. Dole Food Co.,
665 F. Supp. 2d 1307, 1335 (S.D. Fla. 2009), aff’d sub nom. Osorio v. Dow Chem. Co., 635 F.3d
1277 (11th Cir. 2011) (holding that it is “not a close question” that imposing liability without proof
of causation would violate not only the United States Constitution but also “international due
process norms”).
20
Nor could the farmer be held jointly and severally liable for a nuisance caused by the dumping
of contaminants by a different party into Lake Erie twenty years later.

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pollution crisis,” the State may not hold Distributors liable for divisible injuries they did not cause

on the theory that they contributed to an “opioid crisis.” See, e.g., Chipman, 77 N.Y. at 54 (no

“sound principle of justice” would allow for that result).

***

In short, where a plaintiff suffers injuries that are capable of division, New York law (and

due process) do not permit a defendant to be held liable for discrete injuries that it did not cause.

Accordingly, it would be reversible error to hold Distributors jointly and severally liable for the

entirety of the “opioid crisis.”

II. DISTRIBUTORS ARE ENTITLED TO A VERDICT SHEET THAT ALLOCATES

RESPONSIBILITY FOR CAUSING THE ALLEGED INJURIES AMONG
PLAINTIFFS, CO-DEFENDANTS, AND OTHERS.

As described above, the “opioid crisis” is not a single injury; rather, it is a collection of

myriad discrete events with disparate causes. While Distributors deny that they caused any of the

injuries for which Plaintiffs seek to hold them liable, it is beyond legitimate dispute—and the

evidence at trial will show—that Distributors’ conduct had no causal nexus whatsoever with at

least a substantial portion of the discrete injuries that Plaintiffs lump under the “opioid crisis” label.

Accordingly, Distributors are entitled, at a minimum, to a verdict form that permits the jury to

allocate liability among injuries caused by each Defendant’s wrongful conduct, injuries caused by

the conduct of Plaintiffs or third parties, and injuries caused by the wrongful conduct of no one

(i.e., injuries that are damnum absque injuria).

New York and other courts routinely apportion liability in nuisance actions. Chipman, 77

N.Y. at 52 (affirming instructions that jury “could not hold the defendant liable beyond the extent

of the wrong which he had himself done” and that “jury might apportionate” injuries caused by

others); Lawatsch v. City of Kingston, 124 N.Y.S. 578, 579 (N.Y. Sup. Ct., Ulster Cty. 1910)

(holding in nuisance action that defendant was responsible for water pollution caused by him but

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not pollution caused by “the acts of other small contributors to the nuisance” or “increased water

[pollution] occasioned by the sewers”); Wallace v. Drew, 1871 WL 11311, at *1 (N.Y. Sup. Ct.

Mar. 6, 1871) (“It would be manifestly unjust to make the defendants respond for the portion of

the injury and damage occasioned by the wrongful act of [a non-party], who was in no way

connected with them in act or interest, and whose obstruction was wholly upon his own land, and

upon another stream.”); see also Nordone v. Mondo, 269 A.D. 896, 896 (4th Dep’t 1945)

(modifying judgment to reduce damages that were “caused by vibration of the substrata of rock as

the result of blasting” rather than by defendant’s negligence); Cayuga Indian Nation of New York

v. Pataki, 79 F. Supp. 2d 66, 72 (N.D.N.Y. 1999) (damage to land could be allocated among many

different causes); United States v. Imperial Irrigation Dist., 799 F. Supp. 1052, 1070 (S.D. Cal.

1992) (allocating liability for pollution to other causes such as “Mexican immigration” and

“natural runoff from storms”).

Schriver v. Village of Johnstown, 24 N.Y.S. 1083, 1083 (3d Dep’t 1893), aff’d, 148 N.Y.

758 (1896), illustrates the point. There, the plaintiff alleged that the defendant’s sewer

“discharge[d] into the plaintiff’s pond a large amount of noxious and offensive matter,” thereby

creating a nuisance. Id. But the evidence showed that “[t]he filthy contents of the water interfering

with plaintiff’s business do not come wholly from sewers, but in part from privies, mills, surface

drainage, etc., without connection with those sewers.” Id. at 1084. Accordingly, the finder of fact

apportioned liability between the defendant and those third parties, finding that “[o]ne-third of [the

plaintiff’s injury] may be regarded as due to causes for which the defendant is not responsible,”

and therefore reduced the defendant’s total liability by one-third. Id. at 1085.

Likewise here, Distributors are entitled (1) to a verdict sheet that permits the finder of fact

to identify that portion of the injury or injuries for which Plaintiffs’ seek recovery that were due to

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causes for which Distributors are not legally responsible, and (2) to a proportionate reduction in

liability for injuries that the jury determines they did not cause. The “injury” that Plaintiffs lump

under the “opioid epidemic” label was caused, according to Plaintiffs, by the conduct of numerous

other parties—including other wholesalers (such as RDC), Manufacturers (like Purdue), party and

non-party pharmacies, and non-party doctors and medical organizations, e.g., Ex. 13 ¶¶ 257–431

(Purdue), ¶¶ 736–770 (RDC), ¶¶ 187–226 (medical organizations), ¶¶ 7–8 (“Key Opinion

Leaders”), ¶¶ 523, 531 (non-party doctors and pharmacies)—for which Distributors are not

responsible.21

Moreover, to the extent that certain individuals became addicted to prescription opioids

that were properly prescribed by their doctor, those harms were not caused by Distributors’

21
Distributors respectfully submit that the fact that certain of these parties—including Purdue and
RDC—are in bankruptcy is no impediment to including them on the verdict sheet because doing
so would serve only to reduce the remaining Defendants’ liability and not to adjudicate claims
against the bankrupt entities. See, e.g., See Kharmah v. Metro. Chiropractic Ctr., 288 A.D.2d 94,
94 (1st Dep’t 2001) (“[W]hile the bankrupt defendants will not participate in the trial, equity
requires that defendants-appellants have the benefit of CPLR article 16 rights, even though there
is an automatic stay by virtue of the bankruptcy.”); Cabrera v. A-To-Z Signs, 28 N.Y.S.3d 567,
570 (Sup. Ct. Westchester Cty. 2016) (“Notably, when a non party tortfeasor has declared
bankruptcy and, therefore, cannot be joined in a tort action, the non party tortfeasor’s liability is
considered and apportioned.”); see also Variable–Parameter Fixture Dev. Corp. v. Morpheus
Lights, Inc., 945 F. Supp. 603, 606 (S.D.N.Y. 1996) (holding that magistrate’s issuance of report
and recommendation, which discussed severed bankruptcy debtor’s misconduct when ordering
sanctions against nondebtor defendant, did not violate the automatic stay, and that “[d]efendants
offer no support for the proposition that a recommendation alone, having no binding legal effect,
could violate the automatic stay provisions of the Bankruptcy Code”); In re Adler, 395 B.R. 827,
839 (E.D.N.Y. 2008) (holding that state court’s findings of fraud by a Chapter 11 debtor severed
from the action “did not violate the automatic stay”; rather, stay would be violated only if state
court’s findings were subsequently “found to be binding against Debtor”). Out of an abundance
of caution, however, Distributors request only that Court enter a conditional ruling that would
authorize inclusion of bankrupt entities on the verdict sheet by name if an order is issued by the
bankruptcy court clarifying that inclusion of those entities does not violate the automatic stay. (In
the event that such an order does not issue from the bankruptcy court, Distributors reserve the right
to argue that the trial should be continued until the stay is lifted.)

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wrongful conduct, and thus are (at least as to Distributors) damnum absque injuria.22 Similarly,

Plaintiffs’ own experts admit that a substantial portion of the “opioid crisis” consists of addiction

and overdoses on the part of individuals who never were prescribed and/or never used prescription

opioids at all.23 Because Distributors did not cause any addiction or overdose resulting from the

proper use of prescription medicines or from the illegal use of heroin (or at least a jury could so

conclude), they are entitled to a verdict sheet that permits the jury to allocate liability among harms

caused, on the one hand, by their alleged wrongdoing, and harms caused, on the other hand, by the

conduct of Plaintiffs, other Defendants, third parties, or no one. E.g., Schultz v. Excelsior

Orthopaedics, LLP, 129 A.D.3d 1606, 1608 (4th Dep’t 2015) (affirming trial court’s use of two

verdict sheets for each defendant because injuries were “capable of being separated from or divided

between one another”); Roebuck v. Duprey, 274 A.D.2d 620, 622 (3d Dep’t 2000) (affirming

decision to instruct jury that liability was several, and to apportion injury, based on testimony of

plaintiff’s own expert); Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc.,

344 F.3d 211, 224 (2d Cir. 2003) (affirming verdict where jury found defendants were not jointly

and severally liable and apportioned liability even though jury had a “perhaps less than ideal, basis

for assessing relative liability”); see also Said, 289 A.D.2d at 928 (“‘Where a factual basis can be

found for some rough practical apportionment, which limits a defendant’s liability to that part of

22
Plaintiffs’ own experts admit that opioids can be properly prescribed, see, e.g., Ex. 16 § 4(k)–
(l) (admitting that opioids are appropriate in certain circumstances), and Plaintiffs to this day
continue to buy and reimburse for opioids, see Ex. 21 at 47:14–48:22 (Suffolk County ambulances
are required to possess prescription fentanyl and morphine); Ex. 22, New York State Medicaid
Fee-For-Service Preferred Drug List (revised June 18, 2020) at 4–7 (identifying nearly 50 opioids
as “preferred drugs” that are reimbursable under New York’s Medicaid program). Any injuries
resulting from the proper dispensing or administration of opioids is damnum absque injuria.
23
See, e.g., supra n. 17.

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the harm of which that defendant’s conduct has been a cause in fact, it is likely that the

apportionment will be made.’” (quoting Prosser and Keeton, Torts § 52)).24

Furthermore, where (as here) the alleged “injury is remote from the [defendant’s wrongful]

act and consequential, and the result of separate acts of different parties at different times,” the

defendant cannot be held liable for the separate acts of those different parties. Chipman, 77 N.Y.

at 54. According to Plaintiffs, Distributors’ wrongdoing consists of failing to prevent diversion—

conduct that occurred after prescription opioid pills left Distributors’ custody and control.25 But

before any New York resident (let alone any Plaintiff) could possibly be injured as a result of such

diversion, (i) a State-licensed doctor would need to write a prescription, (ii) a State-licensed

pharmacist would need to fill the prescription, (iii) a patient or third party would need to criminally

transfer the medicines to illicit channels, and (iv) a New York resident would need to illegally

ingest the pills. Distributors respectfully submit that these subsequent actions and events—

including at least two crimes—establish the absence of proximate causation as a matter of law.26

24
Distributors respectfully submit that the alleged injuries on which Plaintiffs predicate their
claims are divisible (that is, capable of apportionment) as a matter of law. To the extent the Court
disagrees, however, the Court should submit to the jury the question whether the injuries that
underlies Plaintiffs’ claims are divisible. See, e.g., Said v. Assaad, 289 A.D.2d 924, 926 (4th Dep’t
2001) (reversing trial court’s refusal to allow the jury to apportion liability for separate injuries to
the plaintiff’s head and neck sustained in a single accident); Roebuck, 274 A.D.2d at 621–22 (3d
Dep’t 2000) (affirming trial court’s several liability charge because “the testimony and opinion of
plaintiff’s expert” showed that “plaintiff’s injuries were not indivisible” (emphasis omitted)).
25
See, e.g., Ex. 23, NYSCEF No. 11 (Pl.’s Master Longform Compl.) ¶ 740 (“The Defendants
were each on notice that the controlled substances they manufactured and distributed were the
kinds that were susceptible to diversion for illegal purposes, abused, overused, and otherwise
sought for illegal, unhealthy and problematic purposes), Ex. 13, State’s Compl. ¶ 239 (alleging
Distributor Defendants failed to “maintain effective anti-diversion policies”).
26
Plaintiffs have failed to come forward with evidence establishing a direct causal link between
Distributors’ alleged misconduct and the specific, discrete injuries on which Plaintiffs’ claims are
predicated. For this reason, Distributors respectfully submit that they were entitled to summary
judgment. See, e.g., Ex. 24, NYSCEF Nos. 3020, at 18 (“Plaintiffs cannot point to any evidence
drawing a line from an allegedly improper shipment [by a Distributor] to any expenses incurred
by Plaintiffs as a result of the opioid crisis….”); id. at 22 (“Plaintiffs bear the burden of proving a

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At a minimum, however, the relative contributions of these “separate acts of different parties at

different times” to the injuries for which Plaintiffs seek to hold Distributors liable is a question of

fact. Accordingly, Distributors are entitled to a verdict sheet that permits the jury to allocate

responsibility, inter alia, to the doctors, pharmacists, drug dealers, and drug abusers who the jury

may find were the actual and/or proximate causes of the injuries that underlie Plaintiffs’ claims.27

In other words, Distributors are entitled to a verdict sheet that allows the jury to allocate

responsibility for discrete injuries that it finds a Distributor’s misconduct proximately caused, on

the one hand, and injuries that it finds were actually and proximately caused by the conduct of

others (or that were damnum absque injuria), on the other hand.

Allocating liability in this manner is fully consistent with the approach set forth in the

Restatement (Third) of Torts—which the New York courts have cited approvingly on this

question.28 The Restatement recognizes that “[n]o party should be liable for harm it did not cause,

direct connection between their claimed injuries and specific conduct on the part of
Distributors….”). Distributors do not hereby waive, and expressly reserve the right to renew at
trial and on appeal, the argument that Plaintiffs are obligated to identify the discrete injuries on
which their claims are predicated, and to prove that Distributors were a proximate cause of those
particular injuries.
27
Ample record evidence and Plaintiffs’ own admissions support the proposition that non-party
doctors, pharmacists, patients, and other individuals involved in the diversion of prescription
opioids played a role in causing the injuries for which Plaintiffs seek to hold Distributors liable.
See, e.g., Ex. 13 ¶ 765 (alleging that non-party doctors and pharmacies overprescribed and over-
dispensed opioids); Ex. 23 ¶ 714 (“71% of people who abused prescription opioids got them
through friends or relatives”); Ex. 25, Keyes Rep. at 20 (Plaintiffs’ expert citing data indicating
that the majority of non-medical opioid users obtained their pills “from a friend or relative”).
28
See, e.g., Said, 289 A.D.2d at 926 (citing § 26 approvingly for the principle that “joint and
several liability should not be imposed whenever injuries are separate and distinct and may be
differentiated with respect to their causation”); In re Zyprexa Prod. Liab. Litig., 489 F. Supp. 2d
230, 243 (E.D.N.Y. 2007) (citing § 26 approvingly for the principle that “[i]n tort law, contributory
negligence which once blocked all damages has been replaced by comparative of fault and
apportionment of liability”). Indeed, the Said court partially overturned a jury verdict because the
trial court did not instruct the jury to apportion liability.

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and an injury caused by two or more persons should be apportioned according to their respective

shares of comparative responsibility.” Restatement (Third) of Torts: Apportionment Liab. § 26

cmt. a (2000). It therefore provides that liability should be apportioned where it is possible for the

jury to determine (1) that a defendant “was a legal cause of less than the entire damages for which

the plaintiff seeks recovery” and (2) “the amount of damages separately caused by that conduct.”

Id. § 26. Under this approach, “[d]ivisible damages are first divided by causation into indivisible

parts, and then each indivisible part is apportioned by responsibility.” Restatement (Third) of

Torts: Apportionment Liab. § 26 cmt. a (2000).29

In cases where the Court finds that this approach is “administratively unsuitable because

the case is too complex for a jury to find the requisite facts,” however, the Restatement (Third)

endorses a “one-step process of apportionment.” Id. § 26 cmt. j. Under this one-step approach,

the factfinder simultaneously “takes into account evidence relevant to comparative responsibility

and evidence relevant to causation” to perform the apportionment.30 Following that approach here,

Distributors are entitled to a verdict form that will allow the jury—taking into account both

causation and comparative responsibility—to apportion liability among, inter alia, Plaintiffs,

Defendants (past and present), and third parties—including the non-party doctors, pharmacists,

drug diverters, drug dealers and drug users who contributed to the diverse set of injuries that

Plaintiffs’ lump under the “opioid epidemic” label.

29
See also Restatement (Second) of Torts § 433A (liability “for harm [is] to be apportioned among
two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for
determining the contribution of each cause to a single harm”).
30
Id.; see id. § 26 cmt. e (“[P]ercentages of comparative responsibility can be assigned to a
plaintiff, the defendants, settling tortfeasors, and, depending on rules about joint and several or
several liability, nonparty tortfeasors….”).

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CONCLUSION

The myriad different injuries—with their own discrete causes—that comprise the “opioid

epidemic” do not constitute a single indivisible injury. Rather, Plaintiffs seek to hold Defendants

jointly and severally liable for multiple discrete and derivative injuries, including injuries that

Distributors indisputably did not cause. That approach violates due process and foundational

principles of New York law. See, e.g., Chipman, 77 N.Y. at 53-54 (“If the law was otherwise, the

one who did the least might be made liable for the damages of others far exceeding the amount for

which he really was chargeable….”). Accordingly, Distributors are entitled, at a minimum, to

(1) a verdict form that permits the jury to allocate liability among injuries caused by each

Defendant’s wrongful conduct, injuries caused by the conduct of Plaintiffs or third parties, and

injuries caused by the wrongful conduct of no one (i.e., injuries that are damnum absque injuria),

and (2) a ruling that Distributors are not jointly and severally liable for distinct injuries that the

jury determines their wrongful conduct (if any) did not cause.

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Dated: New York, New York Respectfully submitted,

June 29, 2020
/s/ Christian J. Pistilli

Christian J. Pistilli
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, N.W.
Washington, DC 20001
(202) 662-5342
cpistilli@cov.com

Paul W. Schmidt
David A. Luttinger, Jr.
Alexander Setzepfandt
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018
(212) 841-1000

pschmidt@cov.com
dluttinger@cov.com
asetzepfandt@cov.com

Attorneys for Defendant McKesson Corp. and

PSS World Medical, Inc.

/s/ Michael A. Salimbene

Robert A. Nicholas
Shannon E. McClure
Michael J. Salimbene
REED SMITH LLP
Three Logan Square
1717 Arch Street, Suite 3100
Philadelphia, Pennsylvania 19103
(215) 851-8100
rnicholas@reedsmith.com
smcclure@reedsmith.com
msalimbene@reedsmith.com

Paul E. Asfendis
GIBBONS P.C.
One Pennsylvania Plaza
New York, New York 10119

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(212) 613-2000
pasfendis@gibbonslaw.com

Attorneys for Defendants AmerisourceBergen

Drug Corporation, Bellco Drug Corp., and
American Medical Distributors, Inc.

/s/ Steven M. Pyser

Enu Mainigi*
F. Lane Heard*
Steven M. Pyser
Ashley W. Hardin*
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
(202) 434-5000
emainigi@wc.com
lheard@wc.com
spyser@wc.com
ahardin@wc.com
* Admitted Pro Hac Vice

James M. Wicks
Kevin P. Mulry
FARRELL FRITZ, P.C.
400 RXR Plaza
Uniondale, New York 11556
(516) 227-0700
iwicks@farrellfritz.com
kmulry@farrellfritz.com

Attorneys for Defendants Cardinal Health,

Inc. and Kinray, LLC

23

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APPENDIX A

[PLAINTIFFS]
[CURRENT/FORMER DEFENDANTS]31
New York State government
United States Drug Enforcement Administration
United States Food and Drug Administration
Prescribers
Individuals who abuse opioids or use opioids illegally
Drug dealers and cartels
Other government entities (e.g., local governments and law enforcement)
Other non-defendant opioid manufacturers
Other non-defendant opioid distributors
Other non-defendant pharmacies
Other

31
Distributors respectfully submit that the fact that certain of these parties—including Purdue and
RDC—are in bankruptcy is no impediment to including them on the verdict sheet because doing
so would serve only to reduce the remaining Defendants’ liability and not to adjudicate claims
against the bankrupt entities. Out of an abundance of caution, however, Distributors request only
that Court enter a conditional ruling that would authorize inclusion of bankrupt entities on the
verdict sheet by name if an order is issued by the bankruptcy court clarifying that inclusion of
those entities does not violate the automatic stay.

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NYSCEF DOC. NO. 6763 RECEIVED NYSCEF: 06/29/2020

APPENDIX B

Public Nuisance – Apportionment

If you find that a Plaintiff has proven that one or more Defendants’ unreasonable and

substantial interference with a public right actually and proximately caused a crisis of prescription

opioid abuse, or a crisis of non-prescription, illegal opioid abuse, you must apportion those

Defendants’ percentage of the responsibility for causing one or both of the crises, as well as the

percentage of the responsibility, if any, attributable to the Plaintiffs and others not party to this

case.

In making those decisions, you should take into account the evidence you have heard

relevant to wrongdoing and the evidence you have heard relevant to causation. If you determine

that a portion of the harms were caused by the conduct of a Plaintiff or a person or entity not a

party to this case, you should assign responsibility on the verdict sheet for that portion of the harm

to that Plaintiff or other person or entity, even if you determine that their conduct was not wrongful.

If you determine that a portion of the harm was not caused by any person or entity, or was caused

by the lawful conduct of a Defendant, you should assign responsibility on the verdict sheet for that

portion of the harm to the “Other” category. You may only assign responsibility to a Defendant

for harms that you find the Defendant’s wrongful conduct actually and proximately caused.

Once you have considered all the facts and circumstances, based on these instructions and

the evidence you have heard, you will allocate the fair percentage of responsibility on the verdict

sheet for causing (i) a crisis of prescription opioid abuse, and/or (ii) a crisis of non-prescription,

illegal opioid (e.g., illicit fentanyl and heroin) abuse. The total of the percentages you list must

add up to 100 percent.

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