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400000/2017
NYSCEF DOC. NO. 6795 RECEIVED NYSCEF: 06/30/2020

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

IN RE OPIOID LITIGATION Index No.: 400000/2017

Hon. Jerry Garguilo
Mot. Seq. 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

TEVA DEFENDANTS’ JOINDER TO DISTRIBUTORS’ MOTION FOR

APPORTIONMENT OF CAUSATION AND RESPONSIBILITY AT TRIAL

Defendants Teva Pharmaceuticals USA, Inc. (“Teva USA”), and Cephalon, Inc.

(“Cephalon”) (collectively, the “Teva Defendants”) submit this Notice of Joinder to Distributors’

Motion for Apportionment of Causation and Responsibility at Trial. See NYSCEF Doc. Nos.

6762–6790. As the memorandum in support of that motion explains, Plaintiffs’ asserted

injury—“the opioid crisis”—comprises a wide variety of “distinct harms” for which the

Restatement (Second) of Torts § 433A and other applicable authorities require any alleged

responsibility “to be apportioned.” Id. § 433A(1). That outcome is required even if “[t]here may

be difficulty in the apportionment”—that is, challenges in allocating responsibility for harm

among different causes “do[] not mean that one defendant must be liable for the distinct harm

inflicted by . . . other” causes. Id. cmt. note b. Rather, the finder of fact must “fairly apportion”

responsibility for “subsidiary elements” of the alleged harm. Id.; see also Cayuga Indian Nation

of New York v. Pataki, 79 F. Supp. 2d 66, 71-73 (N.D.N.Y. 1999) (applying principle to reject

joint and several liability and recognizing that while “division or allocation among the

defendants of the damages sustained by the Cayugas will not be an easy task, but neither will it

be impossible”).

Those legal authorities apply equally to the Teva Defendants. They marketed only two

unique branded opioid medications—Actiq and Fentora—that were not widely prescribed in

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New York or elsewhere and had a miniscule share of the opioid market in New York (including

in Suffolk and Nassau Counties). See NYSCEF Doc. No. 2616, at 4–6; NYSCEF Doc. No.

4112, at § 4.3 (¶¶ 26-28). Plaintiffs have presented no evidence that the Teva Defendants caused

any harm in New York by falsely marketing those unique FDA-approved medications. Nor have

Plaintiffs identified a single suspicious order received by Cephalon or Teva USA that caused

some harm in New York. The legal principles articulated in the Distributors’ motion, and in the

joinders by the Janssen Defendants (NYSCEF Doc. No. 6794) and by Allergan Finance, LLC

(NYSCEF Doc. No. 6792), foreclose imposing joint and several liability on Cephalon or Teva

USA for a wide range of discrete harms that their limited alleged conduct did not cause and

could not have caused.

Dated: June 30, 2020 Respectfully submitted,

/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
(305) 415-3000
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

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(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

Counsel for Defendants Cephalon, Inc. and

Teva Pharmaceuticals USA, Inc.

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