FILED: SUFFOLK COUNTY CLERK 07/02/2020 11:07 AM INDEX NO.

400000/2017
NYSCEF DOC. NO. 6799 RECEIVED NYSCEF: 07/02/2020

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:

The People of the State of New York v. Purdue
Pharma, L.P., 400016/2018,
County of Suffolk v. Purdue Pharma, L.P.,
400001/2017,
County of Nassau v. Purdue Pharma, L.P.,
400008/2017

THE ENDO AND PAR DEFENDANTS’ NOTICE OF JOINDER

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

Defendants Endo Pharmaceuticals Inc. and Endo Health Solutions Inc. (together,

“Endo”) and Par Pharmaceutical, Inc. and Par Pharmaceutical Companies, Inc. (together “Par”)

submit this Notice of Joinder in the Distributors’ Motion for Apportionment of Causation and

Responsibility at Trial (NYSCEF Doc. No. 6762-6792) and in the joinders by Allergan Finance,

LLC (NYSCEF Doc. No 6792), the Janssen Defendants (NYSCEF Doc. No 6794), the Teva

Defendants (NYSCEF Doc. No. 6795), and the Actavis Generic Defendants (NYSCEF Doc. No.

6796). As those filings explain in further detail, Plaintiffs’ alleged injury is comprised of a

variety of “distinct harms” for which the Restatement (Second) of Torts § 433A and other

applicable authorities require damages “to be apportioned.” Id. § 433A. That outcome is

required even if “[t]here may be difficulty in the apportionment”—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

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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”).

These authorities apply equally to Endo and Par on the facts of this case. Endo and Par

lawfully sold their prescription opioid medications to certain distributors of pharmaceutical

products, who in turn distributed and sold the medications to licensed pharmacies and health care

providers in New York and elsewhere. The only way that any individual could lawfully obtain

Endo’s or Par’s prescription opioid medications was by obtaining a prescription from a state-

licensed health care provider who was required by law to exercise his or her independent medical

judgment and to only issue prescriptions for medications that he or she deemed medically

necessary based on the particular circumstances. Moreover, Plaintiffs have not identified a

single suspicious order received by Endo or Par (much less one that was shipped into New York)

that Plaintiffs contend should not have been shipped, let alone shown that any such shipment

caused any alleged harm. Nor do Plaintiffs allege that any marketing by Par caused any alleged

harm.

The legal principles articulated in the Distributors’ memorandum, and in the joinders by

Allergan, Janssen, Teva and Actavis, foreclose imposing joint and several liability on Endo and

Par for a wide range of discrete harms that their alleged conduct did not cause and could not have

caused.

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Dated July 2, 2020

/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

Counsel for Endo Health Solutions

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

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