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Suffolk judge allows counties' suits to go forward against opioid manufacturers, distributors

State Supreme Court Justice Jerry Garguilo in 2015.

State Supreme Court Justice Jerry Garguilo in 2015. Credit: Randee Daddona

Complex and sprawling litigation against opioid manufacturers, distributors and pharmacies will go forward, a Suffolk judge ruled, in litigation that pits them against counties and cities statewide seeking reimbursement for the costs of dealing with the opioid epidemic.

Dozens of lawsuits by almost every county and many cities in New York State — and the state itself — have been consolidated before state Supreme Court Justice Jerry Garguilo in Central Islip. After he resolves pretrial issues common to all the litigation, the suits will return to their home counties for trials, now scheduled for September 2020.

Suffolk County, the first to file such a suit, is the lead plaintiff. The various suits target pharmacy chains, drug manufacturing companies such as Purdue Pharmaceuticals owned by the Connecticut-based Sackler family, as well as the family itself. The suits claim that by marketing the drugs aggressively and minimizing their addictive properties, the companies and the Sacklers are largely responsible for the blight of opioid abuse across the state.

Many of the same companies have been sued in dozens of states across the country. States and counties say the drug companies and their owners should reimburse governments for the costs of drug treatment, increased crime and policing and even the costs of autopsies resulting from prescription drug overdoses.

In court papers, the defendants raised a variety of objections to the suits. They argued that the suits lacked jurisdiction because the drugs were approved by the Federal Drug Administration, and the suits failed to show evidence of fraud, deceptive marketing or other actions leading to the epidemic.

A trust set up by the Sackler family argued that trusts cannot be sued at all — and the papers refused to concede that the trust even exists. The counties have said the trust is part of a "hydra-headed" web of companies and legal entities designed to hide liability and responsibility for the manufacturers' actions.

In most cases, Garguilo ruled there was sufficient legal basis for the suits to go forward. In one decision, he wrote that while it is true that most trusts cannot be sued, business trusts — essentially unincorporated businesses — can be sued. And Garguilo wrote it's premature to decide which kind of trust this one is.

In court Monday, Purdue attorney Mark Cheffo of Manhattan, said his clients have delayed taking deposition of the counties' witnesses because he hasn't received the necessary reports about which of those witnesses would testify.

"We haven't received anything," Cheffo said. "We want to go forward," but they can't without the documents, he said.

Paul Napoli, a Melville attorney representing Nassau County, said the companies have the necessary documentation to depose witnesses without delay.

"They're just soft-pedaling, slow-moving" the case, Napoli said — and he said that concerned him. If litigation against Purdue and its related companies is successful in other states and the company pays damages there, he said there may be nothing left for New York counties and cities.

Other plaintiff attorneys agreed with Napoli, and ultimately Garguilo said: "We've got to get moving."

Cheffo said part of the problem is that the counties chose to "sue a zillion different people. … They have brought this massive claim."

The only part of any suit that Garguilo dismissed concerned the Sackler-owned Rhodes Technologies, a Rhode Island company that makes oxycodone hydrochloride and sells it to the family-owned Purdue to make OxyContin, and also makes a generic form of the finished drug. Garguilo said those activities take place outside New York and that no marketing of generic drugs creates liability for Rhodes in this state.

But Garguilo left another related company, Rhodes Pharmaceuticals, in the case because its marketing to doctors could leave it liable for damages.

As he has before, Garguilo again urged all the parties to consider finding a way to settle at least some aspects of the case, if not all of it.

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