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400000/2017
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

Index No. 400000/2017 E

IN RE OPIOID LITIGATION
Hon. Jerry Garguilo

DISTRIBUTORS'
REPLY MEMORANDUM IN FURTHER SUPPORT OF MOTION
FOR APPORTIONMENT OF CAUSATION AND RESPONSIBILITYAT TRIAL

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES.....................................................................................................ii

INTRODUCTION................................................................................................................... 1

ARGUMENT.......................................................................................................................... 2

I. DISTRIBUTORS MAY NOT BE HELD LIABLE FOR INJURIES CAUSED BY

OTHERS AND ARE ENTITLED TO A VERDICT SHEET REFLECTING
THAT FACT. .............................................................................................................. 2

II. DISTRIBUTORS ARE ENTITLED TO A COMPARATIVE FAULT

QUESTION ON THE VERDICT SHEET DURING THE LIABILITY PHASE
OF THE TRIAL..........................................................................................................10

CONCLUSION......................................................................................................................13

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TABLE OF AUTHORITIES

Page(s)

Cases

Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA Inc.,
344 F.3d 211 (2d Cir. 2003)................................................................................................7

Burlington N. & Santa Fe Ry. Co. v. United States,

556 U.S. 599 (2009)............................................................................................................7

Chipman v. Palmer,
77 N.Y. 51 (1879).......................................................................................................2, 4, 5

Copart Indus., Inc. v. Consol. Edison Co. of N.Y,

41 N.Y.2d 564 (1977)...................................................................................................6, 10

Hoffmann v. Horn,
157 A.D.3d 871 (2d Dep't 2018).........................................................................................5

Hymowitz v. Eli Lilly & Co.,

73 N.Y.2d 487 (1989).........................................................................................................8

Lawatsch v. City of Kingston,

68 Misc. 236 (Sup. Ct. Ulster Cty. 1910).............................................................................3

Malone v. Cty of Suffolk,

128 A.D.3d 651 (2d Dep't 2015).........................................................................................3

McNulty v. Ludwig & Co.,

153 A.D. 206 (2d Dep't 1912).............................................................................................5

N.Y Site Dev. Corp. v. N.Y State Dep't of Envtl. Conservation,

217 A.D.2d 699 (1995) .......................................................................................................8

Rangolan v. Cty of Nassau,

96 N.Y.2d 42 (2001)...........................................................................................................5

Ravo v. Rogatnick,
70 N.Y.2d 305 (1987).....................................................................................................7, 8

Rodriguez v. City of New York,

31 N.Y.3d 312 (2018)................................................................................................. 12, 13

Said v. Assaad,
289 A.D.2d 924 (4th Dep't 2001)....................................................................................2, 8

..
11

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Simmons v. Emerson,
124 N.Y. 319 (1891).......................................................................................................4, 5

State of N.Y v. Shore Realty Corp.,

759 F.2d 1032 (2d Cir. 1985) ..............................................................................................3

State v. Fermenta ASC Corp.,

160 Misc. 2d 187 (Sup. Ct. Suffolk Cty. 1994).....................................................................3

State v. Schenectady Chems, Inc.,

103 A.D.2d 33 (3d Dep't 1984).......................................................................................6, 7

State v. Schenectady Chems., Inc.,

117 Misc. 2d 960 (Sup. Ct. Rensselaer Cty. 1983)........................................................3, 6, 7

United States v. Alcan Aluminum Corp.,

315 F.3d 179 (2d Cir. 2003)............................................................................................8, 9

Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013)............................................................................................................4

Warren v. Parkhurst,

186 N.Y. 45 (1906).............................................................................................................4

Other Authorities

N.Y. C.P.L.R. 1411 ................................................................................................................11

Pattern Jury Instruction, Comparative Fault (PJI 2:36 cmt.)................................................ 12, 13

Restatement (Second) of Torts § 433A(1) (1965).......................................................................9

Restatement (Second) of Torts § 840E cmt. a & b......................................................................4

...
111

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INTRODUCTION

Plaintiffs'
Opposition ("Opp.") tellingly fails to address the principal argument made in

Distributors'
opening brief: that, as a matter of New York law and fundamental fairness, a

defendant cannot be held liable for discrete harms that the defendant played no role in causing.

crisis"
Plaintiffs do not dispute that the "opioid is not a single injury, but instead consists of myriad,

Distributors'
discrete injuries (each with their own cause or causes). See Opening Brief, NYSCEF

No. 6763 ("Br.") at 7. Nor do Plaintiffs dispute that Distributors had absolutely nothing to do with

a substantial portion of the injuries for which they seekrecovery-for instance, (i) opioid addiction

flowing not from diversion but from a patient's use of medicines prescribed in good faith by her

doctor; (ii) opioid addiction flowing not from the use of prescription opioids but illicit heroin, or

(iii) opioid pills flowing not from pills they delivered but that were distributed by third-parties

such as RDC. See Br. at 10-12. Indeed, Plaintiffs effectively concede that Distributors had

nothing to do with causing the addiction and overdose of the patient whom the State features

prominently in its complaint as emblematic of the opioid crisis. See Br. at 8-11. Finally, Plaintiffs

cite no authority standing for the proposition that anyone-including the State-may hold a

defendant liable for harms the defendant did not cause merely by wrapping up those discrete

"crisis" "epidemic," "contributed"

injuries under the label of a or and asserting that the defendant

"crisis" "epidemic."
in some ill-defined way to that overall or Br. at 7.

Distributors do not dispute the proposition that-where multiple tortfeasors jointly cause a

single indivisible injury-those tortfeasors may be held jointly and severally liable for that injury.

crisis"
But, as the Opposition fails to dispute, the "opioid is not a single indivisible injury. See Br.

at 11-12. Distributors therefore may no more be held liable for opioid-related injuries they did

not cause than could a farmer on Lake Erie be held liable for pollution in the New York Harbor on

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crisis"
the theory that the farmer contributed to a "water pollution in the State of New York. See

Br. at 13-14. Plaintiffs offer no answer to this argument-because there is none.

In short, Distributors are entitled to a verdict sheetthat permits the jury to apportion liability

among (1) any harm that it finds their wrongful conduct caused, and (2) harms caused by the

wrongful conduct of others or that were not caused by wrongful conduct at all (i.e., damnum

absque injuria). Indeed, failure to permit the jury to apportion liability in this way would be

reversible error because the jury otherwise would have no mechanism to impose liability based

only on the discrete injuries that it finds a given Defendant actually caused.

At a minimum, any doubt about whether to allow the jury to apportion liability should be

resolved in favor of putting the question to the jury. If the court allows the jury to apportion

liability and an appellate court later concludes that liability is joint and several, no harm is done.

By contrast, if the Court refuses to put the question to the jury and an appellate court concludes

that apportionment was required, the case will need to be re-tried. See Said v. Assaad, 289 A.D.2d

924, 929 (4th Dep't 2001) (partially reversing jury verdict because trial court failed to permit jury

to apportion injuries).

ARGUMENT

I. DISTRIBUTORS MAY NOT BE HELD LIABLE FOR INJURIES CAUSED BY

OTHERS AND ARE ENTITLED TO A VERDICT SHEET REFLECTING THAT
FACT.

Under settled New York law, a defendant normally cannot be "liable beyond the extent of

committed."
the wrong which he had Chipman v. Palmer, 77 N.Y. 51, 53 (1879); see Br. at 4-7.

Indeed, any other rule would unfairly hold the defendant "liable for the damages of others far

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chargeable."
exceeding the amount for which [it] really was Id. Accordingly, a defendant may be

liable for injuries that it (or those with whom it acted in concert) caused.1
only actually

Plaintiffs again press the argument (which the Court declined to accept on summary

conduct"
judgment) that they need not prove "negligence or willful in order to prevail on a public

nuisance claim. That is true, however, only in cases involving "inherently dangerous activity or

product."
use of an unreasonably dangerous State v. Schenectady Chems., Inc., 117 Misc. 2d 960,

965 (Sup. Ct. Rensselaer Cty. 1983). Indeed, each and every case cited by Plaintiffs for the

proposition that need not prove negligence or willful conduct involved hazardous wastes.2
they

Because this case does not concern inherently dangerous activities or unreasonably dangerous

products, Plaintiffs must prove either negligent or intentional conduct in order to prevail on their

nuisance claim. See Ex. 26,3 NYSCEF No. 2887 (prior on this Ex. NYSCEF
briefing issue); 27,

No. 3949 (same); see also Malone v. County of Suffolk, 128 A.D.3d 651, 653 (2d Dep't 2015)

(dismissing public nuisance claims for failure to plead breach of cognizable legal duty owed by

the defendant).

Plaintiffs'
In any event, argument confuses the fault and causation elements of the nuisance

claim. Even assuming arguendo that Distributors could be held liable for injuries absent any

1 Lawatsch v. City 68 Misc. 236 (Sup. Ct. Ulster Cty.

See, e.g., of Kingston, 1910) (apportioning
damages for water pollution to exclude amounts attributable to "acts of other small contributors to
the nuisance and also taking into consideration the increased water supply occasioned by the
sewers"). Plaintiffs are simply wrong when they assert (Opp. at 5) that "the sole defendant [in

Lawatsch] was responsible for the entirety of the damages, despite other factors contributing to
nuisance."
the

2 Opp. at 1 (citing State v. Fermenta ASC 160 Misc. 2d 195 (Sup. Ct. Suffolk Cty.
Corp., 187,
1994); Schenectady Chems., Inc., 117 Misc. 2d at 969; State of N.Y v. Shore Realty Corp., 759
F.2d 1032, 1051 (2d Cir. 1985)).

3 Citations to Exhibits 1 to 25 reference the Affirmation of Christian J. Pistilli, dated June 29,
2020 (filed with the Opening Brief); and citations to Exhibits 26 to 29 reference the Affirmation
of Christian J. Pistilli, dated July 14, 2020 (filed herewith).

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wrongful conduct, they still could not be held liable for injuries that their conduct did not cause.

Plaintiffs'
argument also lays bare the radical nature of their theory, under which Distnbutors could

be forced to pay substantial sums (1) for injuries they did not cause, and (2) in the absence of any

wrongdoing by Distributors. That is not justice; it is confiscation.

Plaintiffs argue that public nuisance claims are exempt from the normal rule limiting a

defendant's liability to injuries that the defendant (or those with whom the defendant acted in

concert) caused. But they make no effort to explain why such a foundational principle of tort law

and fundamental fairness should not apply equally to public nuisance claims. See Br. at 12-14;

Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013) ("Causation in fact-i.e., proof

that the defendant's conduct did in fact cause the plaintiff's injury-is a standard requirement of

any tort claim."). Nor do they have any answer to the Restatement (Second) of Torts, which

unequivocally states that the rule requiring apportionment of divisible injuries "applies to both

public and private nuisances."4

Tellingly, not a single New York case cited by Plaintiffs supports the proposition that

liability for divisible injuries is joint and several in public nuisance cases. While Plaintiffs claim

that Simmons v. Emerson, 124 N.Y. 319, 319 (1891), "explicitly addressed the apportionment rule

actions,"
set forth in Chipman and declined to apply it to public nuisance Opp. at 4-5, that is

incorrect. Simmons did not abrogate Chipman or decline to apply its rule to public nuisance

claims.5 Simmons applied the basic rule set down in Chipman to a different set of facts
Rather,

4 Restatement of
(Second) Torts § 840E cmt. a; see id. cmt. b ("As a practical matter, many
nuisances are capable of apportionment among two or more persons who contribute to them....
When the apportionment is made, each person contributing to the nuisance is subject to liability
others...."
only for his own contribution. He is not liable for that of (emphasis added)).

5 Chipman was itself a nuisance and New York nuisance decisions

Indeed, action, following
Simmons say nothing about Chipman being abrogated. See, e.g., Warren v. Parkhurst, 186 N.Y.

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and held that liability was joint and several because the contemporaneous "neglects of the

caused"
defendants united and directly a single injury-i.e., a single wall to fall on a single person,

causing a single death. Simmons, 124 N.Y. at 319; accord McNulty v. Ludwig & Co., 153 A.D.

206, 215 (2d Dep't 1912) (owner and installer of single sign jointly and severally liable for single

injury to single plaintiff caused by the sign when it fell on him).

Here, Plaintiffs do not seek to hold Distributors jointly and severally liable for a single

"direct[ly]" "immediate[ly]"
injury that their conduct and caused, Simmons, 124 N.Y. at 324, but

"remote" "consequential"
instead for and injuries that were "the result of separate acts of different

times,"
parties at different Chipman, 77 N.Y. at 54. Accordingly, Chipman controls, and Simmons

provides no support for the proposition that Distributors may be held jointly and severally liable

for the myriad distinct injuries (each with their own distinct causes) that Plaintiffs lump together

crisis" label.6
under the "opioid

Plaintiffs next assertthat a different rule should apply where the suit is brought by the State,

but that argument too is unsound and unsupported authority.7 To hold a defendant liable for
by

45, 55 (1906) (distinguishing Chipman as applying to actions for nuisance damages and saying
nothing about Simmons abrogating Chipman); see also Br. at 4 n.5 (noting other decisions that cite
Chipman favorably without mentioning any kind of abrogation).

6 Other cases cited Plaintiffs are entirely off-point. For Rangolan v. County
by instance, ofNassau,
96 N.Y.2d 42, 46-47 (2001), holds that CPLR article 16 does not alter traditional principles of
vicarious liability for "joint tortfeasors"; it has absolutely nothing to do with the question whether
a defendant can be held liable for discrete injuries the defendant played no role in causing.

Similarly, Hoffmann v. Horn, 157 A.D.3d 871 (2d Dep't 2018), merely states that liability on "joint
tort-feasors"
is joint and several; here, Distributors are not joint tort-feasors. See Br. at 7; see also
infra at 7-8 (discussing further how Distributors here are not "joint tort-feasors").

7 plaintiffS in particular assert that is joint and several where governments seek injunctive
liability
Distributors'
relief. See Opp. at 12. But Plaintiffs do not seek an injunction restraining conduct.
Plaintiffs'
Rather, as this Court has recognized, the "gravamen of the remedies sought in claims
denominated."
for public nuisance is for money, however Ex. 28, NYSCEF No. 6522 at 2
(emphasis added). Plaintiffs cite no authority standing the proposition that a defendant can be
"abatement"
jointly and severally liable for the of injuries that the defendant played no role in
causing-nor could they.

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injuries it did not cause violates fundamental principles of fairness-and those principles, if

anything, should apply with even greater force where the government is the plaintiff. None of the

New York cases that Plaintiffs cite is to the contrary. For example, dictum in CopartIndustries,

Inc. v. Consolidated Edison Co. of New York, 41 N.Y.2d 564, 568 (1977), states that public

State,"
nuisance is an "offense against the but that case does nothing to relieve the State from the

burden of proving that a defendant caused an injury before the defendant can be held jointly and

severally liable for that injury.

damage"
The cases relied on by Plaintiffs involving "widespread environmental are

particularly instructive. Opp. at 7. For instance, in State v. Schenectady Chemicals, Inc., 103

A.D.2d 33 (3d Dep't 1984), the State sued a chemical company that dumped hazardous waste at a

mixed"
site in Nassau County, where those wastes became "inextricably with wastes deposited by

other alleged wrongdoers. Id. at 34. Under those circumstances, the court rejected the argument

"that dismissal [was] warranted for nonjoinder of [the other] parties whose chemical by-products

site,"
were allegedly disposed of at the [] noting that liability for the inextricably intermixed wastes

was joint and several Id. at 38.

Plaintiffs'
That decision, however, provides no support for position here. As an initial

share"
matter, the State in that case sought to recover from the defendant only "its proportionate

of the clean-up costs-not to hold the defendant liable for the entirety of those costs. Id. at 34;

Schenectady Chems., 117 Misc. 2d at 963 (complaint requested payment for only 17.8% of State's

injuries). More fundamentally, the decision at most stands for the proposition that where the

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'
actions of multiple tortfeasors create an indivisible injury-as occurred when different companies

intermixed" several.8
wastes became "inextricably at a single dump site-liability may be joint and

Tellingly, neither Schenectady Chemicals nor any other case cited by Plaintiffs holds that

a party who contributes to a public nuisance by dumping chemical waste at a particular site can be

held liable for other injuries caused by the dumping of other parties, at other sites located around

the State, at other times. While the independent actions of different companies in different

locations throughout the State over a period of decades might well contribute to an overall crisis

of water pollution in New York, polluters can only be held liable for the discrete instances of

pollution that they played a role in causing. The same is true of the "opioid crisis": while the

independent actions of Defendants, Plaintiffs and third parties all may have contributed in some

crisis,"
way to the overall "opioid each Distributor can be liable only for the discrete injuries that

Plaintiffs prove were caused (in whole or in part) that Distributor's wrongful conduct.9
by

"concurrently."
It is no answer to suggest, as Plaintiffs do, that Defendants acted Opp. at

6. To be sure, "[w]hen two or more tort-feasors act concurrently or in concert to produce a single

liable"
injury, they may be held jointly and severally for that single injury. Ravo v. Rogatnick,

70 N.Y.2d 309 (1987).10 But concurrent causes are causes that operate simultaneous to
305, ly

8 Even this proposition has been undermined subsequent cases that juries should
by holding
apportion liability even when they have a "perhaps less than ideal[] basis for assessing relative
liability."
Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc., 344 F.3d 211,
224 (2d Cir. 2003); Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614 (2009)
(in case involving contamination of site by multiple parties, affirming district court decision

apportioning 9% of liability to defendant, and reversing Ninth Circuit decision that criticized this
apportionment as not "precise"); see also Br. at 14-15 (citing cases apportioning liability in
pollution cases).

9 Distributors that their actions caused a public nuisance in New York or the Counties.
deny
10 Plaintiffs concert"
yet again disavow reliance on an "acting in theory, stating that it is "not at
trial."
issue in this Opp. at 6 n.6. Accordingly, there is no basis for imposing joint and several

liability based on the assertion that Distributors acted in concert with one another or with others to
cause certain injuries. See Br. at 5-6.

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bring about a single indivisible injury, such as where two parties, "struggling for a single gun,

plaintiff"
succeed in shooting the or where they "shoot the plaintiff independently, with separate

wounds."
guns, and the plaintiff dies from the effect of both Said, 289 A.D.2d at 928 (citation

tort-feasors"
omitted). In those circumstances, the parties are considered "joint because they have

agency."
"a joint enterprise and a mutual Ravo, 70 N.Y.2d at 310. By contrast, parties do not act

"concurrently"
merely because they all conducted different businesses in the same State over the

same period of decades. See Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 506 (1989) ("Parallel

activity, without more, is insufficient to establish the agreement element necessary to maintain a

concerted action claim.").

Distributors'
Plaintiffs also offer no meaningful response to showing that it would violate

due process to hold them liable for discrete injuries that they played no role in causing. See Br. at

12-14. The sole New York case cited by Plaintiffs for the proposition that imposition of joint and

crisis"
several liability for the entirety of the "opioid would not violate due process is entirely

inapposite. See Opp. at 10 (citing N.Y Site Dev. Corp. v. N.Y State Dep't of Envtl. Conservation,

217 A.D.2d 699 (1995)). In that case, the court did not reach the merits of the defendant's due

process argument, 217 A.D.2d at 701, and at most suggested that a fine may be jointly and

severally imposed on corporations and their officers for the conduct of the corporate defendants,

id. at 700. The case does nothing to support the proposition that it would be consistent with the

due process guarantees of the federal and state constitutions to hold a defendant jointly and

severally liable for discrete injuries that the defendant played no role in causing.

Distributors'
The only other case cited by Plaintiffs in response to due process argument

Distributors'
in fact supports position. In United States v. Alcan Aluminum Corp., 315 F.3d 179

(2d Cir. 2003), the Second Circuit upheld joint and several liability against a company for cleanup

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costs at two sites where the deposited waste.11 It did after the
company so, however, only (i)

Second Circuit previously remanded the case to the trial court to determine whether the

government's injury was divisible and capable of apportionment, and (ii) the trial court determined

that the injury was not divisible or capable of apportionment. See id. at 183, 186-87.

Plaintiffs'
In sum, and as own case recognizes, "where 'two or more causes have combined

harm,'" harms'
to bring about responsibility for the harm must be apportioned if '"there are distinct

harm.'"
or 'there is a reasonable basis for determining the contribution of each cause to a single

'
Id. at 185 (quoting Restatement (Second) of Torts § 433A(1) & cmt. 2 (1965)). Distributors

crisis"
Opening Brief demonstrated-and the evidence at trial will show-that the "opioid consists

of myriad distinct harms and that there is a reasonable basis for apportioning those harms among

Defendants (including bankrupt former Defendants 12), Plaintiffs and the many third parties who

"crisis."
contributed to that The Opposition does not even attempt to dispute that showing,

effectively conceding that Distributors played no role in causing a substantial portion of the

epidemic."
addiction, overdose and other purported injuries that comprise the "opioid

Accordingly, both New York law and basic principles of due process require that the Court

(1) authorize a verdict form that permits the jury to allocate liability among injuries causedby each

Defendant's wrongful conduct, injuries caused by the conduct of Plaintiffs or third parties, and

injuries caused by the wrongful conduct of no one (i.e., injuries that are damnum absque injuria),

11 The due process issue that the court considered in the Alcan Aluminum case was whether
only
the retroactive application of the federal CERCLA statute violated due process. See 315 F.3d at
188-90. That issue is plainly irrelevant here.

12 Plaintiffs attack a straw man when assert that "CPLR Article 16 ... has no application to
they
trial."
the upcoming Opp. at 17. Distributors cited cases discussing Article 16 not because they
assert that it applies here, but merely to support the proposition that apportionment to bankrupt
entities would not violate the automatic bankruptcy stay. See Br. at 16 n. 21.

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and (2) rule that Distributors are not jointly and severally liable for distinct injuries that the jury

determines their wrongful conduct (if any) did not cause.

"crisis"
Distributors also are entitled to a verdict form that distinguishes between the of

"crisis"
prescription opioid abuse and the of illicit, non-prescription opioid abuse. See Br. at 7

n.10 (citing State's First Am. Compl. ¶¶ 9-17.) Plaintiffs take issue with that proposition, pointing

to their contention that "the waves of prescription opioid, heroin, and fentanyl abuse are

interrelated."
overlapping and Opp. at 8. But even if that were true, it misses the point. While

Distributors'
Plaintiffs contend that delivery of FDA-approved medicines to State-licensed

pharmacies somehow caused people to abuse heroin and illicit fentanyl, the jury certainly is

Distributors'
entitled to conclude that alleged conduct was not a proximate cause of injuries

flowing from the use and abuse of illegal drugs that Distributors did not distribute. This is a factual

Plaintiffs'
question for the jury (if causation theory survives the upcoming Frye hearings), and the

only way that the parties and the appellate courts will ever know whether the jury found

"crisis"
Distributors liable for the of illicit, non-prescription opioid abuse is to ask it the question.

Any other approach invites error.

II. DISTRIBUTORS ARE ENTITLED TO A COMPARATIVE FAULT QUESTION

ON THE VERDICT SHEET DURING THE LIABILITY PHASE OF THE TRIAL.

defenses"
Plaintiffs argue that Defendants "cannot assert comparative fault against them at

Opp. at but this Court has considered and rejected that argument.13 See Ex.
trial, 11, already 5,

NYSCEF No. 5636 at 4; see also Copart,41 N.Y.2d at 569 (holding that a public nuisance plaintiff

"may not avert the consequences of his (or her) own contributory negligence by affixing to the

negligence of the wrongdoer the label of a nuisance") (citation omitted). In its Order denying

13 In order to avoid duplication of Distributors incorporate reference herein their

arguments, by
Plaintiffs'
Opposition to Motion to Strike Affirmative Defenses. Ex. 29, NYSCEF No. 3458.

10

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Plaintiffs' Defendants'
Motion to Strike Comparative Fault Defenses, the Court considere d

Plaintiffs'
argument that they should be treated differently because they are governmental entitie s

merit" party"
and concluded that it is "without because Plaintiffs are "acting essentially as a private

'
in a regular civil case. Ex. 5, NYSCEF No. 5636 at 3-4. The Court likewise rejected Plaintiffs

argument (Opp. at 12) that comparative fault does not apply because it is limited to "claims for

damages," Plaintiffs' pleadings."14

explaining that argument "mischaracterizes their own In other

words, the argument failed because, as the Court later made clear, the "gravamen of the remedies

Plaintiffs' denominated."
sought in claims for public nuisance is for money, however Ex. 28,

Plaintiffs'
NYSCEF No. 6522. In short, the Court already has rejected argument that they are

somehow immune from the assertion of comparative fault defenses. See Ex. 5, NYSCEF No. 5636

plaintiffs'
at 3. ("The court also rejects the claim that CPLR 1411 does not apply to public nuisance

claims.").

Distributors'
Moreover, Opening Brief showed that there is ample evidence from which a

jury could conclude that Plaintiffs (and especially the State) played an outsized role in causing

epidemic."
New York's "opioid See Br. at 2 n.4. Plaintiffs do not make any effort to dispute that

factual showing, instead arguing only that the jury should be shielded from evidence regarding

their culpability as a matter of law. But that, of course, is precisely the legal argument that the

Court already rejected.

Plaintiffs next argue that comparative fault should be determined at the damages phase,

Opp. at 13, but that argument too flies in the face of the Court's prior rulings. The Court limite d

14 Ex.
5, NYSCEF No. 5636 at 3 ("To the extent the plaintiffs argue that CPLR 1411 applies only
to actions to recover damages and not to equitable claims for abatement, this argument
mischaracterizes their own pleadings. The cause of action for public nuisance pleaded in the
master long form complaint is to recover damages; the cause of action for public nuisance pleade d
in the State's complaint is to direct the defendants to endow an abatement fund....").

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'
the scope of permissible discovery prior to the Phase 1 trial to "the liability aspects of the plaintiffs

nuisance."
causes of action for public See Ex. 5, NYSCEF No. 5636 at 2 (emphasis added).

Plaintiffs'
Thereafter, the Court denied request for an order "reliev[ing] them from responding to

requests"
any discovery relating to their comparative fault defenses during Phase 1 of the trial. Id.

These rulings thus confirm that comparative fault is relevant to the phase of the trial.15
liability

That conclusion is consistent with New York's Pattern Jury Instructions, which state that

"[i]f a bifurcated trial is held, liability and relative degrees offault should be decided in the first

second."
stage of the trial; damages in the PJI 2:36 (emphasis added). Indeed, those instructions

include a model special verdict form for bifurcated trials that places comparative fault in the

liability phase. See id., Special Verdict Form PJI 2:36 SV-II Bifurcated Trial-Comparative Fault.

Having the liability-phase jury decide comparative fault makes perfect sense-and is efficient-

because proof of a defendant's wrongful conduct otherwise would need to be presented during

both the liability and the damages phases. In other words, if comparative fault were left to the

damages phase, Plaintiffs would need to present evidence of each Defendant's fault during the

damages phase so that it could be compared with the fault of Plaintiffs. Because the liability jury

Defendants'
is already considering evidence of conduct, it should be the jury to decide issues of

comparative fault.

Rodriguez v. City of New York, 31 N.Y.3d 312, 323 (2018), is not to the contrary. That

case held only that a plaintiff is not required to establish the absence of comparative fault to obtain

summary judgment; it did not address the question of when comparative fault should be addressed

15 Plaintiffs cite an order from that comparative fault is not a defense

January 10, 2020, suggesting
to public nuisance liability (NYSCEF No. 2497), but that Order-which ruled on a discovery letter
motion (id. at 1)-was superseded by the Court's April 13, 2020 Order (Ex. 5, NYSCEF No.

5636), which (unlike the discovery letter) was made on a noticed motion and was fully briefed.

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in a bifurcated trial. Indeed, if anything, Rodriguez suggests that comparative fault should be

determined in the liability phase, as it cites P JI 2:36 approvingly and notes that "[i]n a typical

asked"
comparative negligence trial, the jury is questions about comparative fault before it is asked

about damages. Id. at 324.

Moreover, as Plaintiffs concede, evidence regarding the conduct of others "may be relevant

to provide the jury with context to determine whether each Defendant's conduct was a substantial

nuisance." Plaintiffs'
factor in causing the Opp. at 14 n.16. Thus, evidence of own culpable

crisis"
conduct in bringing about the "opioid undisputedly is relevant to the Phase 1 liability trial.

For this additional reason, the question of comparative fault should be put to the liability jury.

Finally, for much the same reasons, any argument that apportionment of responsibility to

third parties should be deferred to the damages stage likewise would be unavailing. During the

liability phase, the jury will be required to determine whether each Defendant's wrongdoing was

a cause-in-fact and a proximate cause of the injuries on which Plaintiffs predicate their claims.

The same jury should be charged with determining whether the conduct of non-parties caused or

contributed to the alleged nuisance, and the relative contributions of those parties to the overall

epidemic."
"opioid

CONCLUSION

Distributors are entitled to a verdict form and jury instructions that permit the jury (1) to

allocate between injuries that it finds each Defendant caused and injuries that Defendant did not

cause, and (2) to assign comparative fault to Plaintiffs.

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Dated: New York, New York Respectfully submitted,

July 14, 2020

/s/ Christian J. Pistilli

Christian J. Pistilli
COVINGTON & BURLING LLP
One CityCenter

850 Tenth Street, N.W.

Washington, DC 20001

(202) 662-5342
epistilli@cov.com

Paul W. Schmidt
David A. Luttinger, Jr.
Alexander Setzepfandt

COVINGTON & BURLING LLP

The New York Times Building
620 Eighth Avenue
New York, New York 10018

(212) 841-1000

pschmidt@cov.com
dluttinger@cov.com

asetzepfandt@cov.com

Attorneys for Defendant McKesson Corp. and

PSS World Medical, Inc.

/s/ Michael A. Salimbene

Robert A. Nicholas
Shannon E. McClure
Michael J. Salimbene
REED SMITH LLP

Three Logan Square

1717 Arch Street, Suite 3100

Philadelphia, Pennsylvania 19103

(215) 851-8100

rnicholas@reedsmith.com
smcclure@reedsmith.com
msalimbene@reedsmith.com

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Paul E. Asfendis
GIBBONS P.C.
One Pennsylvania Plaza

New York, New York 10119

(212) 613-2000
pasfendis@gibbonslaw.com

Attorneys for Defendants AmerisourceBergen

Drug Corporation, Bellco Drug Corp., and

American Medical Distributors, Inc.

/s/ Steven M. Pvser

Mainigi*
Enu
Heard*
F. Lane
Steven M. Pyser
Hardin*
Ashley W.
WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000
emainigi@wc.com

lheard@wc.com
spyser@wc.com
ahardin@wc.com
*
Admitted Pro Hac Vice

James M. Wicks
Kevin P. Mulry
FARRELL FRITZ, P.C.

400 RXR Plaza

Uniondale, NewYork 11556

(516) 227-0700
jwicks@farrellfritz.com

kmulry@farrellfritz.com

Attorneys for Defendants Cardinal Health,

Inc. and Kinray, LLC

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