NY Judge Threatens Endo Pharma, Attorneys with Contempt
August 23, 2021 | Opioid Crisis
Paul J. Napoli, Of Counsel
Paul Napoli Law PLLC
In Suffolk County, NY, Supreme Court Justice Jerry Garguilo has ordered Endo Pharmaceuticals and its attorneys, Arnold & Porter Kaye Scholer, to explain at a hearing on August 25 why they withheld critical evidence from the New York Attorney General and lawyers for Nassau and Suffolk County, who have sued Endo over its marketing of the opioid painkiller Opana ER.
The plaintiffs allege that Endo marketed its drug misleadingly and that its sales representatives skirted rules in incentivizing doctors to prescribe it, contributing to the opioid epidemic in New York State. This month, the New York AG accused the company and Arnold & Porter of failing to provide “smoking-gun evidence” until the trial was already underway, including records of Endo’s sales representatives marketing its drug to prescribers in New York State.
These documents clearly show how Endo, like other pharmaceutical companies, cultivated relationships with prescribers – even those whose practices were, as one sales rep put it, full of “drug abusers” – to market a highly addictive drug through medical professionals who were trusted by their patients.
By delaying the production of this evidence, Endo’s attorneys made it difficult for the New York AG’s office and lawyers for Suffolk and Nassau Counties to make effective use of the documents during the trial.
“It is impossible to describe or even know,” the plaintiffs’ attorneys wrote in a statement, “how the prosecution of this case might have been different had Endo produced its documents on a timely basis.” Paul Napoli went a step further, saying the Arnold & Porter attorneys should be disciplined by the Court and the bar.
Between 1999 and 2019, more than 500,000 people in the US died from opioid overdoses, and millions of others saw their lives devastated by the effects of addiction. Over 3,000 lawsuits have been filed accusing pharmaceutical companies of willfully marketing opiates as safe and accusing distributors and pharmacies of violating rules intended to curb addiction.
Although some criminal charges have been filed, civil actions – like the lawsuit against Endo – are an effective way for state, county, and city governments to hold the pharmaceutical industry to account for misconduct. Endo’s failure to provide evidence on time threatens to undermine the lawsuit, following a pattern of delay and legal posturing.
At the hearing on August 25, Justice Garguilo has indicated that he may issue a summary judgment against Endo and hold the company and its lawyers in contempt. In April, a Tennessee court did issue a summary judgment, also for delaying the production of documents, leading to a $35 million settlement.
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