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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK
Index No.: 400000/2017
Part 48
IN RE OPIOID LITIGATION Mot. Seq. No. 252

Hon. Jerry Garguilo

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANTS’ MOTION FOR APPORTIONMENT OF CAUSATION
AND RESPONSIBILITY AT TRIAL

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ………………………………………………………………....1

ARGUMENT…………………………………………………………………………………….. 3

I) DEFENDANTS CANNOT HAVE THE JURY APPORTION OR ALLOCATE

LIABILITY AMONG THEM BECAUSE DEFENDANTS ARE JOINTLY AND
SEVERALLY LIABLE FOR THE PUBLIC NUISANCE THEY CAUSE,
CONTRIBUTE TO, OR MAINTAIN ................................................................................ 3
A) Joint and Several Liability is the Rule for Public Nuisance ................................... 3
B) Defendants’ Proposed Limitations on Joint and Several Liability Have No Basis
in New York Public Nuisance Law ........................................................................ 5
C) Neither Due Process Nor the Verdict Form Requires Any Apportionment Among
Defendants ............................................................................................................ 10

II) DEFENDANTS CANNOT APPORTION FAULT WITH PLAINTIFFS ....................... 11

A) Comparative Fault Does Not Apply in Public Nuisance Cases Brought by
Governmental Entities .......................................................................................... 11
B) If the Court Decides to Apply Comparative Fault, It Is Premature to Raise in a
Liability-Only Trial ............................................................................................... 13

III) THERE IS NO REASON FOR THE JURY TO CONSIDER THE FAULT OF THIRD-
PARTIES .......................................................................................................................... 14

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TABLE OF AUTHORITIES

Page

Cases

Amelius v. Grand Imperial LLC,

57 Misc. 3d 835 (Sup. Ct. N.Y. Cty. 2017) ........................................................................ 13, 20

Artibee v. Home Place Corp.,

132 A.D.3d 96 (3d Dep’t 2015) ................................................................................................ 18

Artibee v. Home Place Corp.,

28 N.Y.3d 739, 750 (2017) ....................................................................................................... 20

Cabrera v. A-To-Z Signs,

28 N.Y.S.3d 567 (Sup. Ct. Westchester Cty. 2016).................................................................. 19

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

City of New York v. A-1 Jewelry & Pawn, Inc.,

247 F.R.D. 296 (E.D.N.Y. 2007) .......................................................................................... 4, 12

City of New York v. Beretta U.S.A. Corp.,

315 F. Supp. 2d 256 (E.D.N.Y. 2004) ........................................................................................ 5

Copart Indus., Inc. v. Consol. Edison Co. of New York,

41 N.Y.2d 564 (1977) ................................................................................................................. 1

Fresh Air for the Eastside, Inc. v. Waste Mgmt. of New York, L.L.C.,
405 F. Supp. 3d 408 (W.D.N.Y. Sep. 16, 2019) ......................................................................... 6

Graceland Corp. v. Consol. Laundries Corp.,

7 A.D.2d 89 (1st Dep’t 1958) ................................................................................................... 14

Hoffmann v. Horn,
157 A.D.3d 871 (2d Dep’t 2018) .............................................................................................. 13

In re Nat’l Prescription Opiate Litig.,

No. 1:17-MD-2804, 2019 WL 4043943 (N.D. Ohio Aug. 26, 2019) ......................................... 9

Lawatsch v. City of Kingston,

68 Misc. 236 (Sup. Ct. Ulster Cty. 1910) ................................................................................... 6

Lucchesi v. Perfetto,

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72 A.D.3d 909 (2nd Dep’t 2010) .............................................................................................. 14

McNulty v. Ludwig & Co.,

153 A.D. 206 (2d Dep’t 1912) .................................................................................................... 4

N.A.A.C.P. v. AcuSport, Inc.,

271 F. Supp. 2d 435 (E.D.N.Y. 2003) ...................................................................................... 14

New York Site Dev. Corp. v. New York State Dep’t of Envtl. Conservation,
217 A.D.2d 699 (2d Dep’t 1995) .............................................................................................. 11

People ex rel. Schneiderman v. Greenberg,

27 N.Y.3d 490 (2016) ............................................................................................................... 14

People ex rel. Spitzer v. Applied Card Sys., Inc.,

11 N.Y.3d 105 (2008) ............................................................................................................... 15

Perez v. Persad,
183 A.D.3d 771 (2nd Dep’t 2020) ............................................................................................ 16

Ponderosa Pines, Inc. v. Queens Farm Dairy, Inc.,

48 A.D.2d 760 (4th Dep’t 1975) ................................................................................................. 5

Rangolan v. County of Nassau,

96 N.Y.2d 42 (2001) ................................................................................................................. 13

Ravo by Ravo v. Rogatnick,

70 N.Y.2d 305 (1987) ................................................................................................................. 7

Rodriguez v. City of New York,

31 N.Y.3d 312 (2018) ......................................................................................................... 15, 16

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

Simmons v. Everson,
124 N.Y. 319 (1891) ............................................................................................................... 3, 5

Sommer v. Fed. Signal Corp.,

79 N.Y.2d 540 (1992) ............................................................................................................... 20

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

759 F.2d 1032 (2d Cir. 1985).................................................................................................. 1, 8

State v. City of Yonkers,

14 Misc 3d 1229(A), 2004 WL 5213504 (Sup. Ct. Westchester Cty. 2004) .............................. 4

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State v. Fermenta ASC Corp.,

160 Misc. 2d 187 (Sup. Ct. Suffolk Cty. 1994) .................................................................. 1, 4, 8

State v. Fermenta ASC Corp.,

166 Misc. 2d 524 (Sup. Ct. Suffolk Cty. 1995) .......................................................................... 7

State v. Schenectady Chemicals, Inc.,

103 A.D.2d 33 (3d Dep’t 1984) .............................................................................................. 4, 8

State v. Schenectady Chemicals, Inc.,

117 Misc. 2d 960 (Sup. Ct. Rensselaer Cty. 1983) ............................................................... 2, 18

United States v. Alcan Aluminum Corp.,

315 F.3d 179 (2d Cir. 2003)...................................................................................................... 12

United States v. Hooker Chemicals,

722 F. Supp. 960 (W.D.N.Y. 1989) .......................................................................................... 13

Van Steenburgh v. Tobias,

1837 WL 2824 (N.Y. Sup. Ct. 1837) .......................................................................................... 5

Statutes

CPLR 1401.................................................................................................................................... 12

CPLR 1403.................................................................................................................................... 12

CPLR 1411........................................................................................................................ 14, 15, 16

CPLR 1600.................................................................................................................................... 19

CPLR 1601.................................................................................................................................... 19

Other Authorities

17A Carmody-Wait 2d § 107:78..................................................................................................... 4

Restatement (Second) of Torts § 433A ......................................................................................... 10

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PRELIMINARY STATEMENT

By their motion to apportion causation and responsibility at trial,1 Defendants are asking

the Court to ignore the controlling, dispositive authorities that have firmly established public

nuisance as “an offense against the State.” Copart Indus., Inc. v. Consol. Edison Co. of New York,

41 N.Y.2d 564, 568 (1977). Unlike plaintiffs in personal injury or wrongful death cases, the

governments enforcing public nuisance law here seek to vindicate rights to health, safety, and

comfort common to all their citizens that are subject to an ongoing threat posed by the Defendants’

failure to properly market and distribute opioids—not to obtain monetary redress for specific

victims or discrete harms.

As such, in the upcoming trial of Defendants’ liability for public nuisance, Plaintiffs cannot

be “required to demonstrate negligence or willful conduct” of any of the Defendants, State v.

Fermenta ASC Corp., 160 Misc. 2d 187, 195 (Sup. Ct. Suffolk Cty. 1994), aff’d in relevant part,

238 A.D.2d 400 (2d Dep’t 1997), or to prove any “actual, as opposed to threatened, harm from the

nuisance in order to obtain abatement.” State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1051

(2d Cir. 1985). This is because “New York public nuisance law is clear that, in an action brought

by the State in the exercise of its police powers for . . . abatement . . . ‘fault is not an issue,’” and

given the strict nature of that liability, “the rule is that those contributing to a nuisance are liable

jointly and severally.” State v. Fermenta ASC Corp., 160 Misc. 2d at 195; State v. Schenectady

Chemicals, Inc., 117 Misc. 2d 960, 969 (Sup. Ct. Rensselaer Cty. 1983), aff’d 103 A.D.2d 33, 38

(3d Dep’t 1984). And finally, “[it] is fundamental” that governmental plaintiffs enforcing public

nuisance law are “free to choose [their] defendants,” who in turn have no right, outside the

1
This Memorandum of Law is submitted in opposition to the Distributor Defendants’ Motion (NYSCEF No. 6762 et
seq.) and each of the Joinders thereto (NYSCEF Nos. 6792, 6794, 6795, 6796, 6797, 6799, 6862, and 6864).

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commencement of proper third-party proceedings (which Defendants have not engaged in here),

to invoke the purported responsibility of other alleged contributors to the public nuisance. State

v. Schenectady Chemicals, Inc., 117 Misc. 2d at 969.

In light of these controlling principles, Defendants’ motion to infect the trial and the verdict

form with plainly prejudicial, erroneous, and confusing questions concerning the apportionment

of fault, premised on their invocation of a litany of discrete, largely hypothetical injuries to

individuals throughout the State, must be denied. First, as noted above and as this Court has

repeatedly recognized, New York law requires that Defendants who create, contribute to, or

maintain a public nuisance be held jointly and severally liable, and provides no grounds for

Defendants to seek any limitation or apportionment of that joint and several liability when tried

for public nuisance by governments exercising police powers. Second, Defendants’ inclusion of

Plaintiffs on the verdict form in this liability trial is both legally unfounded and procedurally

premature. Finally, Defendants’ efforts to reduce their own liability for public nuisance by adding

third-parties is legally unsupportable.

Defendants’ motion is not just legally misguided, but affirmatively subversive of the

Court’s aims in carefully narrowing the first phase of the upcoming trial to the liability of the

Defendants for public nuisance in the face of a “myriad of issues” and prolixity “on the verge of

becoming the only credible course.” NYSCEF No. 1875 at 1-2; NYSCEF No. 2087 at 6. Indeed,

Defendants’ misstatement of the relevant law and their proposed expansion of the verdict form to

include 34 questions spanning 10 pages—for each Defendant—represent nothing more nor less

than an attempt to nullify the Court’s efforts by opening the door to a near-limitless inquiry into

every conceivable contributing cause of the opioid epidemic, one bound to confuse, bore, and

overwhelm the jury, not enlighten it. The Court should deny Defendants’ Motion for

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Apportionment and reject their proposed verdict form, which are barred as a matter of black-letter

New York law.

ARGUMENT

I) Defendants Cannot Have the Jury Apportion or Allocate Liability Among Them
Because Defendants Are Jointly and Severally Liable for the Public Nuisance They
Cause, Contribute to, or Maintain

A) Joint and Several Liability is the Rule for Public Nuisance

The parties have briefed this issue on summary judgment, and the Court has acknowledged

both the “long and firmly established pedigree of joint and several liability for nuisance” and the

general rule that there is joint and several liability for every party who creates, contributes to, or

maintains a public nuisance. NYSCEF No. 5656 at 2. Nothing in Defendants’ submission alters

this conclusion. Defendants cite no public nuisance cases brought by the State or other government

bodies and instead rely chiefly on a grab-bag of personal injury cases and inapposite tort law.

Overwhelming authority supports the proposition that anyone who creates, contributes to,

or maintains a public nuisance in New York is jointly and severally liable for the consequences of

it. See, e.g., Simmons v. Everson, 124 N.Y. 319, 323-24 (1891) (“Persons who by their several

acts or omissions maintain a public or common nuisance, are jointly and severally liable for such

damages as are the direct, immediate and probable consequences of it.”) (citing Irvine v. Wood, 51

N.Y. 224, 230 (1872)); McNulty v. Ludwig & Co., 153 A.D. 206, 215 (2d Dep’t 1912) (“[O]nce it

is established, as by the verdict in this case, that the sign constituted a nuisance, all who participated

in creating or maintaining such nuisance were jointly and severally liable for it[.]”); 17A Carmody-

Wait 2d § 107:78 (“[E]veryone who creates a nuisance or participates in the creation or

maintenance of a nuisance is liable, jointly and severally, for the wrong and injury done thereby.

Thus, simply stated, nuisance liability is joint and several.”) (internal footnotes omitted).

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This rule is at its strongest when the government is asserting the public nuisance claim.

See State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 38 (3d Dep’t 1984) (“[N]uisance liability

is joint and several.”); State v. Fermenta ASC Corp., 160 Misc. 2d 187, 195 (Sup. Ct. Suffolk Cty.

1994) (“[E]veryone who creates a nuisance or participates in the creation or maintenance . . . of a

nuisance are liable jointly and severally for the wrong and injury done thereby[.]”) (citations and

internal quotation marks omitted); State v. City of Yonkers, 14 Misc 3d 1229(A), 2004 WL

5213504, at *12 (Sup. Ct. Westchester Cty. 2004) (“A party is liable in nuisance even if other

contributors to the nuisance are not joined for ‘nuisance liability is joint and several[.]’”) (citation

omitted); City of New York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 347 (E.D.N.Y. 2007)

(“Persons who join or participate in the creation or maintenance of a public nuisance are liable

jointly and severally for the wrong and resulting injury.”); City of New York v. Beretta U.S.A.

Corp., 315 F. Supp. 2d 256, 282 (E.D.N.Y. 2004) (same).

As they did in their opposition to Plaintiffs’ summary judgment motion on joint and several

liability, Defendants rely principally on Chipman v. Palmer, 77 N.Y. 51 (1879) to suggest that

liability can be apportioned in a public nuisance case.2 Defendants raise no new arguments

regarding Chipman in this brief, and the parties have already extensively briefed the issues

surrounding Chipman. Rather than belabor the Court with two sets of identical arguments,

Plaintiffs incorporate their arguments made previously3 and simply remind the Court that the Court

2
Defendants also cite Ponderosa Pines, Inc. v. Queens Farm Dairy, Inc., 48 A.D.2d 760 (4th Dep’t 1975) and Van
Steenburgh v. Tobias, 1837 WL 2824 (N.Y. Sup. Ct. 1837), which are both factually distinguishable. Neither case
involves a nuisance or facts remotely similar to a nuisance. Ponderosa Pines involve the conversion of whey
processing equipment by two defendants independently and Van Steenburgh involves the case of two dog owners
whose dogs “worried and killed” the plaintiff’s sheep not being held jointly and severally liable.

3
NYSCEF No. 2557 at 4-6; NYSCEF No. 3946 at 3-5.

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of Appeals in Simmons explicitly addressed the apportionment rule set forth in Chipman and

declined to apply it to public nuisance actions.4

Beyond Chipman, Defendants claim that “New York courts routinely apportion liability in

nuisance actions” and then cite, as the most recent example of this putatively routine practice, a

lower court opinion from 1910, in which the court didn’t apportion liability but instead found that

the sole defendant was responsible for the entirety of the damages, despite other factors

contributing to the nuisance. Defs.’ Mem at 14-15 (citing Lawatsch v. City of Kingston, 68 Misc.

236 (Sup. Ct. Ulster Cty. 1910)). Defendants’ further citations to New York nuisance law,

confined to the nineteenth century and not binding on this Court, are similarly unavailing. Id.

Neither case prosecutes a public nuisance, neither is brought by the State or another governmental

entity, and neither seeks purely equitable relief.5

B) Defendants’ Proposed Limitations on Joint and Several Liability Have No Basis

in New York Public Nuisance Law

Defendants suggest that there are but two narrow conditions under which joint and several

liability can be imposed: concerted action and indivisible injuries. But neither of these limitations

have ever been applied by any court construing New York public nuisance law, which stands to

reason, given that doing so would be fundamentally incompatible with the very purpose of a public

4
“It is urged in behalf of the defendants that at most this is but a case of several independent acts of negligence
committed by each, the joint effect of which caused the accident, and for which they are not jointly liable within the
rule laid down in Shipman [sic] v. Palmer, 77 N. Y. 51. The case at bar does not belong to the class of actions arising
out of acts or omissions which are simply negligent, and, while the defendants did not intend by their several acts to
commit the injury, their conduct created a public nuisance, which is an indictable misdemeanor under the statutes of
this state, . . . and at common law . . . . Persons who by their several acts or omissions maintain a public or common
nuisance are jointly and severally liable for such damages as are the direct, immediate, and probable consequence of
it.” Simmons v. Everson, 124 N.Y. 319, 323-24 (1891).

5
As exemplified by decisions issued as recently as last year, it is the practice of New York courts not to apportion
liability but to hold Defendants who create or participate in the creation of a nuisance jointly and severally liable.
Fresh Air for the Eastside, Inc. v. Waste Mgmt. of New York, L.L.C., 405 F. Supp. 3d 408, 445 (W.D.N.Y. Sep. 16,
2019); State v. City of Yonkers, 14 Misc. 3d 1229(A) (Sup. Ct. Westchester Cty. 2004).

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nuisance cause of action, as demonstrated by a cursory review of the authorities Defendants

(selectively) cite for their meritless argument here.

First, with respect to “concerted action,” Defendants cite Ravo by Ravo v. Rogatnick, 70

N.Y.2d 305 (1987), a medical malpractice case with absolutely no bearing on nuisance liability

principles, for the proposition that “where two or more Defendants act ‘in concert to produce a

single injury, they may be held jointly and severally liable.’” Defs.’ Mem. at 5 (quoting Ravo, 70

N.Y.2d at 309). As a matter of accuracy, the rule in Ravo is not limited to acting “in concert”—

the full quote reads: “When two or more tort-feasors act concurrently or in concert to produce a

single injury, they may be held jointly and severally liable.” Id. (emphasis added). Defendants’

conduct was indisputably concurrent in bringing about the public nuisance in New York, and so

Ravo would actually pose no barrier to the Plaintiffs’ claims here even if it were applicable, which

it is not.6

Second, Defendants—again trying to shoehorn personal injury principles from Ravo into

the workings of public nuisance—argue that liability could alternatively only be joint and several

where there is a “‘single indivisible injury’—that is, an injury ‘incapable of any reasonable or

practicable division or allocation.’” Defs.’ Mem. at 6 (quoting Ravo, 70 N.Y.2d at 310). The

connection that Defendants propose between indivisible injuries and the application of joint and

several liability in nuisance is nowhere supported in the text of these opinions.7 If anything,

Simmons suggests quite the opposite. Rather than connecting the single indivisible death to joint

6
The extent to which the Defendants actually acted “in concert” is likewise not at issue in this trial, but Plaintiffs
reserve all rights to introduce evidence of, and make any appropriate argument relating to, specific instances of
relevant acts or omissions in which more than one Defendant participated, cooperated, or collaborated.

7
Again, it bears repeating that the individualized injuries that Defendants focus on are not a necessary component of
a public nuisance action seeking abatement. See State of N.Y. v. Shore Realty Corp., 759 F.2d at 1051; State v.
Fermenta ASC Corp., 166 Misc. 2d 524, 531 (Sup. Ct. Suffolk Cty. 1995), aff’d in relevant part, 238 A.D.2d 400 (2d
Dep’t 1997).

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and several liability as Defendants suggest,8 Simmons establishes joint and several liability for

those who create public nuisances. In that case, each defendant contributed to the disrepair of the

shared collapsing wall, and each was held jointly and severally liable regardless of whose section

of the wall actually killed the passerby, even though each defendant in that case was responsible

for maintaining a purportedly discrete section of that wall.

It is also impossible to reconcile Defendants’ theory with the broad application of joint and

several liability in New York public nuisance cases, which, because they concern rights common

to all, often involve numerous injuries. Specifically, Defendants’ interpretation is contradicted by

the abundance of case law applying joint and several liability to public nuisances with widespread

environmental damage. State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 38 (3d Dep’t 1984)

(“nuisance liability is joint and several”); State v. Fermenta ASC Corp., 160 Misc. 2d 187, 195

(Sup. Ct. Suffolk Cty. 1994); State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1052-53 (2d Cir.

1985) (“[I]n the public nuisance context . . . ‘everyone who . . . participates in the . . . maintenance

. . . of a nuisance are liable jointly and severally.’”) (citations omitted); Fresh Air for the Eastside,

Inc. v. Waste Mgt. of New York, L.L.C., 405 F. Supp. 3d 408, 445-46 (W.D.N.Y. 2019) (“‘[E]very

one who creates a nuisance or participates in the creation or maintenance of a nuisance are liable

jointly and severally for the wrong and injury done thereby.’”) (citation and emphasis omitted).

Defendants make two arguments for why the opioid epidemic in New York is divisible,

both of which are untenable. First, they argue that the opioid epidemic must be broken down into

“myriad individual instances of opioid use and abuse” and that Plaintiffs must prove every instance

of addiction, overdose, and death. Defs.’ Mem. at 7. This is wrong and misapprehends the nature

8
“On those facts, liability was joint and several because the defendants’ negligence caused a single indivisible injury—
i.e., the death of the passerby.” Defs.’ Mem. at 6 (citing Simmons at 320; Said v. Assaad, 289 A.D.2d 924, 928 (4th
Dep’t 2001) (noting single “death cannot be divided or apportioned”)).

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of public nuisance—an offense against the State and an interference with public rights—and

confuses it with a collection of personal injury torts.

Second, Defendants claim that “at a minimum” the Court should divide the question of

causation between the “prescription opioid epidemic” and the “non-prescription opioid epidemic.”

Defs.’ Mem. at 7 n.10. Far from making such a distinction, Plaintiffs contend that the waves of

prescription opioid, heroin, and fentanyl abuse are overlapping and interrelated. Both in the MDL

and here, several of Plaintiffs’ experts have opined on the gateway effect between the use of

prescription opioids and non-prescription opioids. When Defendants moved to strike these

opinions under a Daubert challenge in the MDL, Judge Polster denied their request, finding the

harms to be intertwined:

The Court agrees with Defendants that the literature the Experts rely on focuses
predominantly on illicit opioid users who were initially non-medical users of
prescription opioids. However, the Court does not agree that this fact provides a
basis on which to exclude the Experts’ reports and testimony. As a report of the
National Academies of Sciences, Engineering, and Medicine (“NASEM”) noted,
“the prescription and illicit opiate epidemics are intertwined; indeed, a majority of
heroin users report that their opioid misuse or OUD began with prescription
opioids.” NASEM Report at 6 (Doc. #: 2197-1). The categories “medical user” and
“non-medical user” are similarly intertwined. In many cases, medical users
transitioned into non-medical users because they became addicted - a result that
Plaintiffs assert, and some evidence suggests, had something to do with assurances
from opioid manufacturers downplaying the risks of addiction.

In re Nat’l Prescription Opiate Litig., No. 1:17-MD-2804, 2019 WL 4043943, at *3 (N.D. Ohio

Aug. 26, 2019).

Indeed, even Cardinal’s retained expert has acknowledged that “although the majority of

overdose deaths are attributed to illicit opioids, prescription opioids have been found to play a

critical role in the crisis, serving as ‘gateway’ opioids to more harmful illicit opioid use.” Ex. A

at 1 (Peggy Compton & Suzan Blacher, Nursing Education in the Midst of the Opioid Crisis, 21

Pain Management Nursing 1:35 (2020)); see also Ex. B at 6 (Andrew B. Kanouse & Peggy

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Compton, The Epidemic of Prescription Opioid Abuse, the Subsequent Rising Prevalence of

Heroin Use, and the Federal Response, 29 J. Pain Palliat. Care Pharmacother. 2:102 (2015)) (“A

particularly worrisome trend in the United States is the recent rise in heroin use. The National

Survey on Drug Use and Health (NSDUH) estimated that the number of Americans having used

heroin in the past 30 days rose from 373,000 to 620,000 between 2007 and 2011. Contributing to

this increase are [prescription opioid] abusers who transition to heroin use, with the prescribed

opioid serving as a ‘gateway drug’ to the illicit one.”).

Many of the Manufacturer Defendants join the Distributor Defendants’ Motion and argue

that the Restatement (Second) of Torts § 433A supports the apportionment of liability. See, e.g.,

Teva Defendants’ Joinder (NYSCEF No. 6795) at 1. Citing the same section, however, this Court

has noted:

Where two or more causes combined to produce such a single result, incapable of
division on any logical or reasonable basis, and each is a substantial factor in
bringing about the harm, the courts have refused to make an arbitrary
apportionment for its own sake, and each of the causes is charged with
responsibility for the entire harm.

Order dated January 28, 2020 (NYSCEF No. 3382) at 3 (quoting Restatement of Torts § 433A,

(2)(i)).

Finally, Allergan and Anda’s supposed de minimis basis for avoiding joint and several

liability also fails.9 This Court already has rejected that argument on summary judgment and

agreed with Judge Polster that “even a very small proportional contribution by one of numerous

defendants could equate with a rather large and substantial absolute quantity, both in monetary

9
See Allergan Joinder (NYSCEF No. 6792) at 1; Anda Joinder (NYSCEF No. 6797). Allergan’s de minimis argument
is especially confounding given the fact that there is a dispute regarding the responsibility for the liability of Actavis
Generic Defendants. (See e.g., NYSCEF Doc. 4036 at pp. 5-6).

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terms and in terms of the consequent harms.” Order dated April 16, 2020 (NYSCEF No. 5660) at

2.10

Defendants’ suggested limitations on joint and several liability find no support in New

York public nuisance law, and even if they did, Plaintiffs would satisfy these exceptions.11

C) Neither Due Process Nor the Verdict Form Requires Any Apportionment Among
Defendants

Because joint and several liability is the law in New York and because Defendants have no

constitutional or statutory means of preventing the application of joint and several liability, the

verdict form should not include any apportionment of liability among Defendants.

Contrary to Defendants’ claims, the imposition of joint and several liability does not

abridge Defendants’ right to due process. New York Site Dev. Corp. v. New York State Dep’t of

Envtl. Conservation, 217 A.D.2d 699, 701 (2d Dep’t 1995) (fine imposed jointly and severally

was not a violation of due process); United States v. Alcan Aluminum Corp., 315 F.3d 179, 190

(2d Cir. 2003) (no violation of due process in holding defendant jointly and severally liable for

environmental cleanup costs). Far from abridging due process rights, joint and several liability is

expressly contemplated in New York courts’ analysis of nuisance causation. See, e.g., City of New

York v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 346-48 (E.D.N.Y. 2007).

10
Several of the Manufacturer Defendants claim that they either do not engage in marketing of their generic drugs or
that their branded drugs enjoy a small market share, but these arguments ignore Defendants’ unbranded marketing
and marketing through third-party front groups as explained in Plaintiffs’ response to Defendants’ Rule 19-a
statements and elsewhere. See Ex. C (Senate Report, Fueling an Epidemic: Exposing the Financial Ties Between
Opioid Manufacturers and Third Party Advocacy Groups); NYSCEF Nos. 3693, 3694, 3697, 3701. Additionally, any
Defendant’s complaints about the nature of Plaintiffs’ proof have been addressed in Plaintiffs’ Response to
Defendants’ Motion for Summary Judgment on the Issue of Causation. NYSCEF No. 5207.
11
Insofar as a motion for the apportionment of liability is the proper forum for Defendants’ arguments regarding the
relevant limitations period (Defs.’ Mem. at 2 n.2), Plaintiffs ask the Court to reject Defendants’ proposed limitations
period for the reasons set out in NYSCEF 3703.

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Defendants’ resort to Article 14 of the CPLR—which permits tortfeasors to claim

contribution among themselves for amounts paid in excess of their equitable share of the

judgment—is unavailable to Defendants for several reasons. Defs.’ Proposed Verdict Sheet

(NYSCEF No. 6760) at 10 n.v. First, Article 14 is limited to situations involving “two or more

persons who are subject to liability for damages for the same personal injury, injury to property

or wrongful death.” CPLR 1401 (emphasis added). Second, even if Defendants could claim

contribution, they have not done so in a procedurally cognizable way under New York law. CPLR

1403 provides that a “cause of action for contribution may be asserted in a separate action or by

cross-claim, counterclaim, or by third-party claim.” Defendants have not asserted a cause of action

in any form against other Defendants or third-parties.

Defendants who create, contribute to, or maintain a public nuisance are jointly and

severally liable in New York. As such, any Defendant found liable can “be held liable for the

entire judgment, regardless of its share of culpability.” Rangolan v. County of Nassau, 96 N.Y.2d

42, 46 (2001); see also Hoffmann v. Horn, 157 A.D.3d 871, 873 (2d Dep’t 2018) (“At common

law the joint and several liability imposed on joint tort-feasors was indivisible, and any one of the

joint tort-feasors was liable to the injured party for the entire damage.”) (citation omitted).

Accordingly, Defendants’ motion to apportion liability should be denied.

II) Defendants Cannot Apportion Fault with Plaintiffs

A) Comparative Fault Does Not Apply in Public Nuisance Cases Brought by

Governmental Entities

Because Defendants cannot assert comparative fault defenses, the jury has no basis to

apportion liability to Plaintiffs. Plaintiffs are governmental entities bringing claims for public

nuisance, and therefore no comparative fault defense can be asserted against Plaintiffs. Since the

introduction of the comparative fault regime in 1975, no New York court has permitted

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defendants to raise a comparative fault defense in an equitable public nuisance case brought by

a governmental entity.12 When those defenses have been raised, courts have rejected them.

Amelius v. Grand Imperial LLC, 57 Misc. 3d 835, 847 (Sup. Ct. N.Y. Cty. 2017) (“Comparative

negligence or assumption of the risk are not theories available in defense of a public nuisance

claim.”); see also Graceland Corp. v. Consol. Laundries Corp., 7 A.D.2d 89, 93 (1st Dep’t 1958)

(Breitel, J.), aff’d, 6 N.Y.2d 900 (1959). Defendants in earlier briefing have cited private nuisance

cases in which courts have permitted comparative fault defenses, but these cases are readily

distinguishable. See Opp’n to Pls.’ Mot. to Dismiss Defenses (NYSCEF No. 3548) at 6, 10. For

example, there is a world of difference between homeowners on Staten Island suing each other

over debris moving from one property to another (see Lucchesi v. Perfetto, 72 A.D.3d 909 (2nd

Dep’t 2010)) and an exercise of the government’s police power to abate a decades-long public

health epidemic.

Further, CPLR 1411, New York’s comparative fault statute, is limited to claims for

damages. The State’s abatement claim is equitable in nature; that the abatement consists, in part,

of money is irrelevant to whether the claim itself is legal or equitable.13 As Judge Weinstein noted,

“[t]hat a defendant may be required to expend funds to abate a nuisance does not convert an

equitable action to a legal one where any expenditure is preventative and ancillary to or intertwined

with the injunctive relief requested.” N.A.A.C.P. v. AcuSport, Inc., 271 F. Supp. 2d 435, 467

(E.D.N.Y. 2003); see also People ex rel. Schneiderman v. Greenberg, 27 N.Y.3d 490, 497 (2016)

12
Defendants have previously cited a federal case, United States v. Hooker Chemicals, 722 F. Supp. 960 (W.D.N.Y.
1989), to suggest that a comparative fault defense is available in public nuisance, but there the court permitted a
modified assumption of risk defense only because the State had “expressly assumed the risks” of the nuisance when
it purchased land pursuant to a deed containing an exculpatory clause. Notably, the court struck the failure to mitigate
and contributory negligence defenses. Id. at 967 n.3, 971.

13
The State’s First Amended Complaint makes clear that injunctive relief is also critical to addressing Defendant’s
improper marketing and deficient anti-diversion compliance practices. See First Am. Compl. ¶ 27, Prayer for Relief.

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(disgorgement is an equitable remedy); People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d

105, 125 (2008) (same). Additionally, CPLR 1411 is limited to claims that seek damages for

“personal injury, injury to property, or wrongful death.” The State’s forward-looking effort to

vindicate the public rights being infringed by Defendants’ behavior falls under none of these

categories, and Defendants have offered no plausible explanation to the contrary.14

B) If the Court Decides to Apply Comparative Fault, It Is Premature to Raise in a

Liability-Only Trial

If the Court decides that comparative fault is appropriate here, any determination of

Plaintiffs’ fault must await the damages phase of this bifurcated trial. Indeed, the Court has already

denied Defendants discovery “for the purpose of establishing comparative fault” because “the

information would not be relevant to the issue of liability regarding the Public Nuisance claim.”

Jan. 10, 2020 Decision and Order at 1 (NYSCEF No. 2497). The comparative fault regime,

adopted in 1975, directs “courts to consider a plaintiff’s comparative fault only when considering

the amount of damages a defendant owes to plaintiff.” Rodriguez v. City of New York, 31 N.Y.3d

312, 318 (2018) (emphasis added). As such, Plaintiffs do “not have to demonstrate the absence of

[their] own comparative fault” to resolve the sole question before the Court—Defendants’ liability.

Id. at 323. (“[T]o obtain partial summary judgment on defendant’s liability [plaintiff] does not

have to demonstrate the absence of his own comparative fault.”). There, as here, comparative fault

“is not a defense to any element” of nuisance “and as CPLR 1411 plainly states, is not a bar to

plaintiff’s recovery, but rather a diminishment of the amount of damages.” Id. at 320.

14
In earlier briefing, Defendants argued that CPLR 1411’s “injury to property” language encompasses any tortious
activity resulting in damages. NYSCEF No. 3458 at 6 (citing Lippes v. Atl. Bank of New York, 69 A.D.2d 127, 141
(1st Dep’t 1979)). However, the Second Department has never adopted this expansive interpretation as law. Five
Towns Coll. v. Citibank, N.A., 108 A.D.2d 420, 434 (2d Dep’t 1985). Further, the unique history of public nuisance
as infringements on the rights of the crown and the criminal origins of nuisance law serve to distinguish it from the
field of torts generally. See RESTATEMENT (SECOND) OF TORTS § 821B cmt. a. See also the State’s Motion in Limine,
dated July 8, 2020.

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Comparative fault is not an issue for the liability phase of trial. Perez v. Persad, 183 A.D.3d 771

(2nd Dep’t 2020) (affirming grant of plaintiff’s partial summary judgment for liability and noting

that “comparative negligence on the part of the plaintiff, if any, which would offset the amount of

damages, must abide the trial”).

If the Court decides to ask the jury empaneled to determine comparative fault and to assign

percentages of fault,15 it should do so only after asking the jury to determine the antecedent

question of Defendants’ liability. The comparative negligence Pattern Jury Instruction’s model

special verdict form is instructive in this regard: questions regarding Defendant’s negligence and

whether it was a substantial factor in causing the injury are answered by the jury before questions

regarding Plaintiff’s negligence, whether it was a substantial factor in causing the injury, and the

relative percentages of fault. See PJI 2:36; Rodriguez v. City of New York, 31 N.Y.3d 312, 324

(2018) (citing PJI 2:36).

III) There is No Reason for the Jury to Consider the Fault of Third-Parties

There is no legal justification for Defendants’ theory that their liability must be determined

only with reference to all other possible contributions,16 that those other possible contributors must

all be listed on the verdict form, and that the jury must numerically account for each of these

causes. See Defs.’ Mem. at 14; Defendants’ Reply Regarding Verdict Form Issue at 8 (NYSCEF

No. 6434) (“Determining whether any individual Defendant was a ‘substantial factor’ requires

assessing the amount of each Defendant’s alleged contribution to the purported nuisance, and

15
The State reiterates its position that, because it is not seeking damages, any subsequent allocation could never occur
as far as the State is concerned.

16
If the Court decides to adopt the negligence-based “substantial factor” framework in its proximate causation
analysis, then evidence regarding non-parties may be relevant to provide the jury with context to determine whether
each Defendant’s conduct was a substantial factor in causing the nuisance. Even then, that is no reason to list those
non-parties on the verdict form or to ask the jurors to ascribe fault to them.

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whether other contributions were the actual substantial factors that caused the purported

nuisance.”).

Defendants’ reasoning here is an obvious attempt to turn the judicially-managed process

to resolve narrow, discrete issues into a far-ranging commission on all the conceivable causes of

the opioid epidemic. For example, Defendants’ proposed 34-question verdict form for each

Defendant reads as much like the fruits of a brainstorming session as anything else, asking jurors

to assign a percentage of responsibility for, among others, the following third-parties:

• United States Drug Enforcement Administration

• United States Food and Drug Administration,
• Individuals who abuse opioids or use opioids illegally,
• Drug dealers and cartels, and
• Other government entities.

See Defs.’ Proposed Verdict Sheet at 3 (NYSCEF No. 6760). This cannot be taken seriously.

First, the list impermissibly suggests a verdict favorable to Defendants—encouraging the jury first

to blame the State and federal government and only then consider Defendants alongside ill-defined

groups of actors associated with the opioid epidemic. Second, even assuming, arguendo, that

Defendants could somehow prove that the DEA and the FDA created, contributed to, or maintained

the public nuisance, this would not immunize Defendants from liability. And if a nebulous and

indeterminate assortment of “drug dealers and cartels” did help create, contribute to, or maintain

the public nuisance, Defendants would remain jointly and severally liable for the nuisance. As

Judge Polster has reasoned, each Defendant’s liability will be determined by that Defendant’s

actions,17 and third-parties should not be included on the verdict forms.

17
A related issue recently came before Judge Polster in the MDL litigation. There, the Pharmacy Defendants filed
third-party complaints against John and Jane Doe prescribers whom the pharmacies claimed were ultimately
responsible for the “bad” prescriptions that the pharmacies had filled. Judge Polster struck these third-party complaints
against John and Jane Doe prescribers, finding that the Pharmacy Defendants could not somehow transfer their liability
to anonymous prescribers and that any addition of claims and parties would add complexity and delay to the trial. See
In re Nat'l Prescription Opiate Litig., No. 1:17-MD-2804, 2020 WL 1526726, at *3 (N.D. Ohio Mar. 31, 2020). Judge

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If the Court finds that third-party conduct is relevant, New York public nuisance law

provides an established procedure for Defendants to make this argument. “[T]he rule is that those

contributing to a nuisance are liable jointly and severally, and ‘[i]t is fundamental that a plaintiff

is free to choose his defendants.’ If defendant feels that others may have contributed to plaintiff’s

damage it should commence the appropriate third-party practice.” State v. Schenectady

Chemicals, Inc., 117 Misc. 2d at 969 (citations omitted) (emphasis added), aff’d as modified, 103

A.D.2d 33 (3d Dep’t 1984). Rather than asserting claims against the non-parties it now tries to

blame, Defendants engaged in third-party discovery targeted at addiction treatment centers,

community groups, and individual police officers (some at what appear to be their home addresses)

sending over 70 third-party subpoenas in total. In other contexts, New York courts have expressed

their apprehension about permitting Defendants to make an empty-chair defense: by

“apportion[ing] fault (if any) between defendant, which will be present in the courtroom and which

no doubt will present a vigorous defense, and the [absent third-party], which, as the

‘constitutionally mandated empty chair’ in the courtroom, can neither appear nor offer any defense,

an unfair—or, at the very least, skewed—result will occur.” Artibee v. Home Place Corp., 132

A.D.3d 96, 101 (3d Dep’t 2015) (Egan, J., dissenting), rev’d Artibee v. Home Place Corp., 28

N.Y.3d 739, 742 (2017). If Defendants wish to seek indemnification from third-parties whom they

have identified as somehow more responsible for paying into the abatement fund, they are entitled

to do in separate or subsequent proceedings where those third-parties are represented. Phase 1 of

the current trial, at which the third-parties and Purdue are unrepresented and unable to defend

themselves, however, is not the appropriate venue for determining percentages of responsibility.

Polster ruled that Defendants’ liability would be determined by evidence of Defendants’ own conduct and duties and
not by looking to the actions of unrelated third-parties. For much the same reasons, the Court should exclude third
parties from the verdict forms here in New York.

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Regardless of what transpires in any bankruptcy proceeding, the jury does not need to

consider, much less calculate a precise share of, the fault of absent third-parties who cannot defend

themselves.18 CPLR Article 16, which has no application to the upcoming trial, serves to limit a

defendant’s liability for non-economic damages only “in an action or claim for personal injury”

such that a defendant’s liability does not exceed its “equitable share determined in accordance with

the relative culpability of each person causing or contributing to the total liability for non-

economic loss.” CPLR 1601. Plaintiffs’ losses are not “non-economic,” nor does the State seeks

damages, nor is this a personal injury case. See CPLR 1600 (defining non-economic loss).

Therefore, Article 16 does not apply here. See Amelius v. Grand Imperial LLC, 57 Misc. 3d 835,

847, 64 N.Y.S.3d 855 (Sup. Ct. N.Y. Cty. 2017) (striking affirmative defense based on CPLR

Article 16 in a public nuisance case, stating “CPLR article 16 is a statutory modification of the

doctrine of joint and several liability in personal injury cases, and concerns the apportionment of

liability for noneconomic losses sustained by injured individuals as between the various

defendants. (See CPLR 1601.) It has no application here.”) (emphasis added); Sommer v. Fed.

Signal Corp., 79 N.Y.2d 540, 556 n.6 (1992) (“[T]his modification of the traditional joint-and-

several liability rule is applicable only in personal injury actions.”). Indeed, after reviewing the

legislative history of Article 16, the Court of Appeals has recognized “the assiduous balancing of

interests that went into this statute . . . [and] decline[d] to recognize the availability of

18
Defendants again cite Cabrera for the proposition that an absent, bankrupt nonparty tortfeasor’s liability can be
considered and apportioned. Defs.’ Mem. at 16 n.21 (citing Cabrera v. A-To-Z Signs, 28 N.Y.S.3d 567, 570 (Sup. Ct.
Westchester Cty. 2016)). Subsequent to Cabrera, however, the Court of Appeals in Artibee v. Home Place Corp., 28
N.Y.3d 739 (2017) reversed the Appellate Division case that Cabrera chiefly relied on. Prior to Artibee, “a bankrupt
entity’s share of fault—or the share of many bankrupt entities in the realm of asbestos litigation—was included in
apportioning fault for purposes of CPLR Article 16 . . . . Given Artibee’s conclusion that the term ‘jurisdiction’ in
CPLR 1601(1) means both personal and subject matter jurisdiction, this area of the law needs to be reexamined.”
Siegel, New York Practice § 168C (6th ed.).

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apportionment where the statute does not expressly permit it.” Artibee v. Home Place Corp., 28

N.Y.3d 739, 750 (2017).

Ultimately, the upcoming phase of the trial is about the liability of Defendants who will be

present. Any Defendant found to have created, contributed to, or maintained a public nuisance is

jointly and severally liable. The Court should reject any attempt by Defendants to shift the focus

from themselves by including Plaintiffs or third-parties on the verdict sheet. The inclusion of any

other parties apart from Defendants serves no legal purpose and will undermine the Court’s efforts

to manage the upcoming trial.

CONCLUSION

The Court narrowed and bifurcated this trial to make it manageable. Faced with an impending

trial, Defendants now argue, against the preponderant weight of New York public nuisance law, that

joint and several liability does not apply and that they must be permitted to blame anyone but

themselves in their effort to evade responsibility for their contributions to New York’s opioid epidemic.

There is no legal foundation for these arguments, and they must be seen for what they are—an attempt

in the first instance to derail the Court’s management of the upcoming trial, and, failing that, an effort

to confuse, bore, or overwhelm the jury. Defendants’ motion should be denied.

July 8, 2020

Respectfully submitted,

LETITIA JAMES
Attorney General of the State of New York
Attorney for Plaintiff

By: /s/ David E. Nachman

David E. Nachman
Counsel for Opioids and Impact Litigation

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Office of the New York State Attorney General

28 Liberty Street
New York, New York 10005
(212) 416-8390
John Oleske
Senior Enforcement Counsel
Elizabeth Chesler
Special Counsel
Leo O’Toole
Assistant Attorney General

/s/ Paul J. Napoli

Paul J. Napoli
Salvatore C. Badala
Joseph L. Ciaccio
NAPOLI SHKOLNIK PLLC
400 Broadhollow Road, Suite 305
Melville, New York 11747
Phone: (212) 397-1000
Facsimile: (646) 843-7603
pnapoli@napolilaw.com
sbadala@napolilaw.com
jciaccio@napolilaw.com

/s/ Paul J. Hanly, Jr.

Paul J. Hanly, Jr.
Jayne Conroy
Andrea Bierstein
Thomas I. Sheridan, III
Sarah S. Burns (pro hac vice)
Richard Kroeger (pro hac vice)
SIMMONS HANLY CONROY LLC
112 Madison Avenue
New York, NY 10016
(212) 784-6401
phanly@simmonsfirm.com
jconroy@simmonsfirm.com
abierstein@simmonsfirm.com
tsheridan@simmonsfirm.com
sburns@simmonsfirm.com
rkroeger@simmonsfirm.com
Plaintiffs’ Co-Lead Counsel
To: All Counsel of Record (by NYSCEF)

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