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400000/2017
NYSCEF DOC. NO. 6792 RECEIVED NYSCEF: 06/30/2020

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

Index No.: 400000/2017

IN RE OPIOID LITIGATION PART 48
Hon. Jerry Garguilo

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 NOTICE OF JOINDER

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

Allergan Finance, LLC (“Allergan”) submits this Notice of Joinder to Distributors’ Motion

for Apportionment of Causation and Responsibility at Trial. NYSCEF Doc. No. 6762. Under

New York law, a defendant may be liable only for the injuries it caused. See, e.g., Chipman v.

Palmer, 77 N.Y. 51 (N.Y. 1879); Ponderosa Pines, Inc. v. Queens Farm Dairy, Inc., 48 A.D.2d

760, 368 N.Y.S.2d 358 (4th Dep’t 1975); Van Steenburgh v. Tobias, 1837 WL 2824, 17 Wend.

562 (N.Y. Sup. Ct. 1837). This bedrock principle applies with even greater force to Allergan on

the facts of this case.

Plaintiffs’ own expert testified that Allergan’s market share of New York opioid shipments

was so miniscule from 2006-2019 that it “rounds to zero.” 1 NYSCEF Doc. No. 4036 at 10 (citing

Ex. 4 (NYSCEF Doc. No. 4095)). And it is undisputed that Allergan did not even acquire Kadian

(the product it is alleged to have unlawfully marketed) until well over a decade after Plaintiffs

1
Even these numbers were inflated because in her report, Ms. Keller incorrectly attributed pre-2009 Kadian sales
to Allergan instead of to an unrelated non-party Alpharma Inc.—the company that actually owned and marketed
Kadian before 2009. See NYSCEF Doc. No. 4036 at 10 (citing Ex. 4 (NYSCEF Doc. No. 4095)).

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contend that Purdue and other entities supposedly changed the standard of care with respect to

opioid prescribing through speakers bureaus, KOLs, lobbying, and unbranded promotion—none

of which Allergan ever participated in. See NYSCEF Doc. No. 2858 at 7 (citing Exs. 2, 6-12

(NYSCEF Doc. Nos. 2861, 2865-2871)). Nor is there any evidence anywhere in this record that

Allergan’s Kadian product was unlawfully diverted. As a result, to the extent Allergan could be

found to have contributed to the alleged public nuisance at all, any contribution was, at most, “very

small”—and “[u]nder these circumstances, it would be fundamentally unfair to hold [Allergan]

jointly and severally liable.” In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 447

F. Supp. 2d 289, 303 (S.D.N.Y. 2006). Indeed, imposing joint and several liability on Allergan

for the alleged multi-billion dollar abatement of the decades-long “opioid crisis” would result in

liability entirely disproportionate to any culpability: Allergan’s alleged wrongdoing is of a

fundamentally different nature and scale than the allegations against other Defendants, as its

involvement didn’t start until years after the supposed change in prescribing practices and its share

of prescription opioid shipments in New York “rounds to zero.” See, e.g., Cayuga Indian Nation

of N.Y. v. Pataki, 79 F. Supp. 2d 66, 72 (N.D.N.Y. 1999) (“[G]iven the relative equities and because

it would be fundamentally unfair to hold otherwise, the court refuses to find that the State of New

York is jointly and severally liable for the entire amount of the damages sustained by the

Cayugas.”). 2

2
Nor can Plaintiffs show that Allergan “act[ed] concurrently or in concert” with others “to produce a single injury.”
Ravo by Ravo v. Rogatnick, 70 N.Y.2d 305, 309, 514 N.E.2d 1104, 1106-07 (N.Y. 1987). The State has explicitly
disavowed any claim for concerted action, and the Counties concede that their concerted action allegations relate
solely to their non-nuisance causes of action. See NYSCEF Doc. No. 3715 at 41 (“The State is not asserting a
claim for concerted action in this case,” and “the Counties’ concerted action allegations are relevant only to their
non-nuisance causes of action, which have been severed from the upcoming trial.”). Indeed, there are no
marketing allegations regarding Allergan prior to early 2009 so Allergan cannot have acted in concert with others,
but even if there was such evidence in this record (there is not), “the application of concurrent wrongdoing may
still be inappropriate if it would be unfair to impose joint and several liability on defendants.” MTBE, 447 F.
Supp. 2d at 302–03.

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Moreover, because the purported injuries alleged by Plaintiffs are divisible, Allergan

cannot be liable beyond any “separate injury or the aggravation [its own] conduct has caused.”

Ravo, 70 N.Y.2d at 310, 514 N.E.2d at 1107. As the Distributors’ memorandum in support of their

Motion explains, “each individual instance of opioid use and abuse is a separate injury—each with

its own cause or causes.” NYSCEF Doc. No. 6763 at 12. New York law does not permit Plaintiffs

to attempt to hold Allergan jointly and severally liable simply because it may be “difficult, because

of the nature of the injury, to separate the harm done by each tort-feasor from the others.” Ravo,

70 N.Y.2d at 312, 514 N.E.2d at 1108. In fact, this Court already has correctly recognized that

these Plaintiffs, like “[a]ll Plaintiffs, in all civil litigation involving fault[,] must attribute

responsibility to the correct defendant.” NYSCEF Doc. No. 5658 at 4. Holding Allergan jointly

and severally liable for the entire “opioid crisis” would extend joint and several liability far too

broadly to comport with principles of due process and fundamental fairness.

For those reasons, and for the reasons explained in Distributors’ Motion, Allergan is

entitled, at a minimum, to (1) a verdict form that permits the jury to allocate liability among

Plaintiffs, past and present Defendants (including Purdue), third parties, and other causes

(including injuries caused by no one), and (2) a ruling that Allergan is not jointly and severally

liable for distinct injuries that the jury determines its wrongful conduct did not cause.

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Date: June 30, 2020 /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, 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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