FILED: SUFFOLK COUNTY CLERK 07/14/2020 10:34 PM INDEX NO.

400000/2017
NYSCEF DOC. NO. 7255 RECEIVED NYSCEF: 07/14/2020

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

Index No.: 400000/2017

IN RE OPIOID LITIGATION PART 48
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.

ALLERGAN FINANCE, LLC'S REPLY IN FURTHER SUPPORT OF JOINDER

TO DISTRIBUTORS' MOTION FOR
APPORTIONMENT OF CAUSATION AND RESPONSIBILITY AT TRIAL

Distributors'
Allergan Finance, LLC ("Allergan") joins Reply in Further Support of their

Motion for Apportionment of Causation and Responsibility at Trial, NYSCEF Doc. No. 7243, and

Defendants' Distributors'
Certain Manufacturer forthcoming Joinder to Reply. Allergan submits

Plaintiffs'
this separate Reply to correct misstatements regarding the Court's prior holdings related

specifically to Allergan.

First, Plaintiffs argue that the Court has already decided that a de minimis actor like

Allergan can be jointly and severally liable for the alleged multi-billion dollar abatement of the

crisis."
decades-long "opioid See NYSCEF Doc. No. 7212 at 14-15. That is not what the Court

said. Rather, in the order cited by Plaintiffs, the Court simply referenced the substantial factor

charge within the New York Pattern Jury Instruction on Proximate Cause-which does not say

that a defendant may be liable for more than the injuries it caused. See id. (citing NYSCEF Doc.

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2).1
No. 5660 at What's more, Plaintiffs entirely ignore that even if a de minimis actor like

Allergan could be found to have contributed to the alleged public nuisance at all, "it would be

liable"
fundamentally unfair to hold [Allergan] jointly and severally because its contribution was,

small."
at most, "very In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 447 F. Supp. 2d 289,

303 (S.D.N.Y. 2006).

Second, Plaintiffs claim "[t]hat there is a dispute regarding the responsibility for the

Defendants."
liability of Actavis Generic NYSCEF Doc. No. 7212 at 14 n.9. In ruling on

Allergan's motion for summary judgment, however, the Court described Allergan's argument that

Entities' conduct" "obvious."

"Allergan cannot be liable for the Actavis Generies as NYSCEF

Doc. No. 5658 at 4 (explaining that Plaintiffs "must attribute responsibility to the correct

defendant").

Plaintiffs'
own expert admits that Allergan's market share of New York opioid shipments

zero."
was so small from 2006-2019 that it "rounds to NYSCEF Doc. No. 4036 at 10 (citing Ex.

4 (NYSCEF Doc. No. 4095)). And Plaintiffs do not even attempt to dispute that they have not

produced a shred of evidence that Allergan's Kadian product was unlawfully diverted.

Nonetheless, after reiterating their disavowal of any claim for concerted action, Plaintiffs submit

"concurrently."
that Defendants may be held jointly and severally liable because they acted

Distributors' Plaintiffs'
NYSCEF Doc. No. 7212 at 11 n.6. As Reply explains, contention

"concurrently"
misunderstands the nature of concurrent causes. Parties do not act simply by virtue

of conducting similar business during the same time period. See Hymowitz v. Eli Lilly & Co., 73

N.Y.2d 487, 506 (1989). Even if the opposite were true it would not impact Allergan's exposure

1 order in ruling on Anda 's-motion for

The Plaintiffs cite was issued by the Court 's-not Allergan summary
judgment.

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to joint and several liability because there are no marketing allegations regarding Allergan prior to

early 2009. Thus, Allergan could not have acted concurrently with others alleged to have changed

the standard of care with respect to opioid prescribing through KOLs, speakers bureaus, lobbying,

and unbranded promotion-all conduct in which Allergan never participated.

Holding Allergan jointly and severally liable on such a paucity of evidence (and

allegations) would violate foundational principles of due process and fundamental fairness.

Allergan cannot be held liable for injuries that it had no role in causing. The jury must be allowed

to apportion liability among each Defendant, Plaintiff, and third party that it finds caused each

discrete injury.

Date: July 14, 2020 Respectfully submitted,

/s/ Jennifer G. Levy

Jennifer G. Levy, P.C.
Catie Ventura (admitted pro hac vice)
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, P.C. (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 Defendant Allergan Finance,

LLC

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