Judge disappointed after hearing Endo may have withheld ‘smoking gun’ evidence.
Endo Pharmaceuticals may face a default judgment or order of contempt for withholding evidence in a trial over its role in the devastating opioid epidemic. Justice Jerry Garguilo in Suffolk County Supreme Court named Joseph Maltese, a retired judge in the state’s Appellate Division, Second Department, as ‘special master’ to help him decide whether to impose consequences for failure to produce potential evidence. Garguilo said Maltese “would deliver a report and the parties would have a chance to respond.”
Garguilo also expressed concerns about Endo’s conduct. He referred to the fact that the company had been “sanctioned with default judgment over similar allegations in a separate case in Tennessee.” Endo settled that case for $35 million.
The record apparently appeared to show that Endo became aware of “relevant discovery before jury selection began in June in New York.” The supposed evidence included records of Endo sales’ representatives visits to New York prescribers as well as other internal records and communications that could influence decision-making in the case. In a new filing last week, the state said it had also identified a “previously unproduced email from a witness, a former Endo employee, to her husband expressing concerns about the company’s marketing practices.”
Garguilo said, “If we’re just before the commencement of jury selection, why doesn’t somebody get on the phone to the plaintiffs and say, ‘Wait a second, we just came up with some information you should have?’”
The appointment of Maltese as special master was met with objection from the New York Attorney General’s office, which is suing Endo and other drug makers at the same time Nassau and Suffolk Counties are battling it out in court. John Oleske, a state attorney, called the appointment “a last-resort extension of mercy” to Endo that would impose “additional burdens on New York as it continues to try the case while combing through late-produced evidence.”
New York sought default judgment on early last month, alleging Endo and its attorneys for Arnold & Porter Kaye Scholer of dumping “vast troves of smoking gun evidence mid-trial.” The company and the firm have denied the allegations and await a decision from the special master. Garguilo entered an interim order requiring the drug maker to provide a list of late-produced evidence with information about its chain of custody by August 4.
More than 500,000 Americans have died from fatal drug overdoses according to the Centers for Disease Control and Prevention (CDC). The agency contends, “Collaboration is essential for success in preventing opioid overdose deaths. Medical personnel, emergency departments, first responders, public safety officials, mental health and substance use treatment providers, community-based organizations, public health, and members of the community all bring awareness, resources, and expertise to address this complex and fast-moving epidemic.”
More than 3,000 lawsuits have been filed by state and local governments accusing opioid manufacturers of deceptive marketing practices, and distributors and pharmacies of ignoring red flags. The cases are being heard as part of multi-district consolidated litigation that is overseen by federal judge Dan Polster, appointment by former U.S. president Bill Clinton, in Cleveland, Ohio.
The case is In Re Opioid Litigation, Suffolk Supreme Court, No. 400000/2017.