A court-appointed referee has recommended sanctions against a law firm that represented an opioid manufacturer sued by Nassau, Suffolk and New York State for failing to disclose evidence at a landmark opioids trial until two months after it began in June in Central Islip.
In a 20-page report issued Friday, retired appellate judge Joseph Maltese said that Arnold & Porter Kaye Scholer should have known about the documents, which include notes from an Endo International sales representative who described a doctor’s waiting room as full of "drug addicts and crackheads."
Maltese said attorneys for the state and the counties could have used those notes to demonstrate that the Endo representative was promoting sales of opioids at what appeared to be a pill mill.
Maltese recommended that Suffolk County Supreme Court Justice Jerry Garguilo order APKS to pay attorney fees for the costs associated with motions about the firm’s failure to produce documents. He also recommended that Garguilo use the "court’s discretion" to award monetary sanctions against APKS.
"Discovery gamesmanship will not be tolerated in New York, especially when, as here, failure to provide relevant discovery directly prejudiced plaintiff’s prosecution of its case," said Jayne Conroy, an attorney for Suffolk.
Attorneys for the state and the counties claimed during the trial that began in June and remains ongoing, that opioid manufacturers and distributors created a public nuisance by deceptively marketing opioids and downplaying their risks. The plaintiffs' lawsuit claimed Endo and pharmaceutical companies are responsible for the opioid epidemic that had claimed thousands of lives on Long Island and across the state in recent years. They hope to recoup millions of dollars for drug treatment, recovery and prevention.
The companies have said they're not responsible for the epidemic and are being made scapegoats to those who are responsible, including illicit drug dealers, health regulators who encouraged opioid use, and doctors who overprescribed painkillers.
Maltese did not recommend, as plaintiffs requested, to bar the firm from representing Endo in the future. He also turned down requests to refer an APKS partner for discipline in California, where she is based, or sanction another firm representing Endo.
"While we do not agree with all of the statements made in this report, we are gratified that the referee rejected the vast majority of the plaintiffs' unfounded allegations and attacks on the integrity of our firm," APKS said in a statement.
Maltese said Endo has also been accused of withholding similar documents in a Tennessee opioid case.
New York Attorney General Letitia James declined to comment. Hunter Shkolnik, an attorney representing Nassau, said "there is no positive spin for Arnold & Porter" in the report, comparing it to a defendant who delcares victory for getting life in prison rather than the death penalty.
"We think Judge Maltese followed the proper course of action and found that Arnold & Porter violated thier responsibility to the court," Shkolnik said.
Attorneys for the state and counties also asked for sanctions against Endo, but Maltese declined because the drug manufacturer settled the case for $50 million in September after settling the Tennessee case for $35 million.
Most of the defendants in the lawsuit have settled with the counties and the state since the trial began in early summer. Attorneys for manufacturers Allegan Finance, Teva Pharmaceuticals and distributor Anda Inc. are presenting witnesses this week.