Opinion
INDEX No. 400000/2017 INDEX No. 400001/2017 INDEX No. 400008/2017 INDEX No. 400016/2018
04-09-2020
IN RE OPIOID LITIGATION County of Suffolk v. Purdue Pharma L.P. County of Nassau v. Purdue Pharma L.P. People of the State of New York v. Purdue Pharma L.P.
NYSCEF DOC. NO. 5636 SHORT FORM ORDER PRESENT: Hon. JERRY GARGUILO Justice of the Supreme Court MOTION DATE 1/22/20
ADJ. DATE 2/19/20
Mot. Seq. #132 - MD
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiffs, (incorrectly) dated January 3, 2019, and supporting papers (including Memorandum of Law); (2) Affirmation in Opposition by defendants Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica Inc., Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Par Pharmaceutical, Inc., Par Pharmaceutical Companies, Inc., Teva Pharmaceuticals USA Inc., Cephalon Inc., Watson Laboratories, Inc., Actavis LLC, Actavis Pharma, Inc. f/k/a Watson Pharma, Inc., Allergan Finance, LLC f/k/a Actavis, Inc. f/k/a Watson Pharmaceuticals, Inc., Allergan plc f/k/a Actavis plc, McKesson Corp., Cardinal Health, Inc., Kinray, LLC, AmerisourceBergen Drug Corp., Bellco Drug Corp., American Medical Distributors, Inc., Mallinckrodt LLC, and SpecGx LLC, dated January 29, 2020 (including Memorandum of Law); and (3) Reply Memorandum of Law by the plaintiffs, dated February 10, 2020; it is
ORDERED that the motion by the plaintiffs for an order (a) pursuant to CPLR 3211 (b), dismissing (i) the second, fifth, seventh, and twenty-fourth defenses pleaded by defendant Allergan Finance, LLC (NYSCEF Doc. No. 477), (ii) the sixth, tenth, and seventeenth defenses pleaded by defendants Endo Pharmaceuticals Inc. and Endo Health Solutions Inc. (NYSCEF Doc. No. 478), (iii) the fifth, sixth, ninth, tenth, sixteenth, twenty-sixth, twenty-seventh, and thirty-third defenses pleaded by defendants Johnson & Johnson and Janssen Pharmaceuticals, Inc. (NYSCEF Doc. No. 479), (iv) the third, fifteenth, twenty-second, twenty-third, twenty-fourth, forty-fourth, and fifty-first defenses pleaded by defendants Mallinckrodt LLC and SpecGx LLC (NYSCEF Doc. No. 1378), (v) the eleventh, thirteenth, seventeenth, and forty-eighth defenses pleaded by defendants Teva Pharmaceuticals USA, Inc. (NYSCEF Doc. No. 483); (vi) the fourth, seventh, tenth, fifteenth, and eighteenth defenses pleaded by defendants AmerisourceBergen Drug Corporation, Bellco Drug Corp., and American Medical Distributors, Inc. (NYSCEF Doc. No. 537); (vii) the eleventh, thirteenth, seventeenth, forty-eighth, and seventy-fourth defenses pleaded by defendants Cardinal Health, Inc. and Kinray, LLC (NYSCEF Doc. No. 538); and (viii) the eleventh, thirteenth, seventeenth, forty-sixth, and seventy-first defenses pleaded by defendants McKesson Corporation and PSS World Medical, Inc. (NYSCEF Doc. No. 540), and (ii) pursuant to CPLR 3103, granting a protective order denying the defendants any discovery relating to those defenses, is denied to the extent that those defenses relate to the cause of action for public nuisance pleaded in the master long form complaint, and is otherwise denied without prejudice to renewal upon the conclusion of the first phase of the trial.
By way of this motion, the plaintiffs request that the court dismiss certain "legally unsustainable" affirmative defenses and, in doing so, relieve them from responding to any discovery requests insofar as they relate to those defenses.
Rather than address any particular defense on its merits, the plaintiffs identify two "sets" of defenses which they seek to have the court dismiss, namely, the "contributory fault defenses" (including failure to mitigate damages, assumption of risk, and contributory negligence or fault) and the "equitable defenses" (including ratification, unclean hands, laches, waiver, acquiescence, and equitable estoppel). The plaintiffs claim, in part, that both sets of defenses are barred by principles of executive discretion, the public duty rule, and the governmental function immunity doctrine, all of which were designed to foreclose litigants and the courts from second-guessing the public policy and law enforcement priorities of governmental actors; also, that they are inapplicable to causes of action predicated on statutory violations. As to the comparative fault defenses, the plaintiffs further contend that CPLR 1411 does not apply to public nuisance claims. As to the equitable defenses, the plaintiffs argue that such defenses are not applicable to government entities acting in a capacity to enforce public rights in the public interest.
The court notes at the outset that the defenses listed in the notice of motion are all defenses raised in answers to the master long form complaint and amended short form complaints filed in the various actions brought by the municipalities; at the time this motion was filed, no answers to the State's complaint had yet been filed. Nevertheless, on review of Point I of the plaintiffs' memorandum of law (NYSCEF Doc. No. 2373), it appears that the plaintiffs may be asking that the court dismiss similar defenses anticipated to be asserted in answers to the State's complaint. If they are, the court refuses the invitation to do so, as it has neither the inclination nor the authority to dismiss defenses which have not been (and might not be) pleaded. Additionally, as the parties are well aware of the court's direction that only the liability aspects of the plaintiffs' causes of action for public nuisance are to be the subject of the first phase of the trial and that all current discovery is to be limited accordingly, the court will consider the arguments raised on the plaintiffs' motion only to the extent that they bear on the municipalities' cause of action for public nuisance. Should the plaintiffs, upon the conclusion of the first phase of the trial, wish to timely renew their motion to dismiss as may then be appropriate, they may do so.
"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). When seeking dismissal of an affirmative defense, the burden is on the plaintiff to demonstrate that the affirmative defense is "'without merit as a matter of law'" ( Bank of N.Y. v Penalver , 125 AD3d 796, 797, 1 NYS3d 825, 826 [2d Dept 2015], quoting Vita v New York Waste Servs., LLC , 34 AD3d 559, 559, 824 NYS2d 177, 178 [2d Dept 2006]). A court determining such an application "must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every favorable inference" ( Fireman's Fund Ins. Co. v Farreli , 57 AD3d 721, 723, 869 NYS2d 597, 599 [2d Dept 2008]; accord Gonzalez v Wingate at Beacon , 137 AD3d 747, 26 NYS3d 562 [2d Dept 2016] Chestnut Realty Corp. v Kaminski , 95 AD3d 1254, 945 NYS2d 708 [2d Dept 2012]). "If there is any doubt as to the availability of a defense, it should not be dismissed" ( Butler v Catinella , 58 AD3d 145, 148, 868 NYS2d 101, 104 [2d Dept 2008]).
The plaintiffs" opening argument—that the defendants cannot be permitted, through their defenses, to lessen or avoid their liability based on what the plaintiffs did or did not do in responding to the opioid epidemic because it would be tantamount to "blaming the victim"—fails to state a basis for dismissal. It is precisely the point of a defense alleging comparative fault to reduce a plaintiff's recovery in proportion to his or her culpable conduct (see generally CPLR 1411, 1412).
The court also rejects the plaintiffs' claim that CPLR 1411 does not apply to public nuisance claims. CPLR article 14-A, which encompasses CPLR 1411, is applicable "all actions brought to recover damages for personal injury, injury to property or wrongful death whatever the legal theory upon which the suit is based" ( Arbegast v Board of Educ. of S. New Berlin Cent. Sch., 65 NY2d 161, 167, 490 NYS2d 751, 755 [1985]). "[W]hat the statute requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party's conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury" (id. at 168, 490 NYS2d at 756). Thus, even if the interference with a public right constituting the alleged nuisance is based on conduct proscribed by a statute, the plaintiffs' culpable conduct might constitute a partial defense; whether the plaintiffs engaged in culpable conduct and, if so, whether that conduct was a substantial factor in causing their damages, of course, remain to be decided (see id.). 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 pleaded in the State's complaint is to direct the defendants to endow an abatement fund and is not a subject of this motion in any event. That the alleged nuisance may be predicated, in part, on violations of the NYCSA does not change the court's opinion in this regard. Even assuming that a finding of nuisance would be tantamount to a finding that the defendants had violated the NYCSA, the plaintiffs have failed to demonstrate that liability under the NYCSA is among the limited types of statutory liability as to which a plaintiff's comparative fault may not be invoked to diminish a defendant's responsibility (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1411:2; see also Grove v Cornell Univ ., 151 AD3d 1813, 54 NYS3d 260 [4th Dept 2017]; Lippes v Atlantic Bank of N.Y., 69 AD2d 127, 419 NYS2d 505 [1st Dept 1979]).
As to the plaintiffs' further claim that their status as governmental entities precludes application of any of the subject defenses against them—citing principles of executive discretion, the public duty rule, and the governmental function immunity doctrine—it is likewise without merit. While the court recognizes and appreciates the general applicability of those theories to allow a government to avoid liability in tort when sued by a private citizen injured by a third party (see Valdez v City of New York , 18 NY3d 69, 936 NYS2d 587 [2011]), it cannot sanction their application in a situation where the government is the plaintiff in a civil lawsuit and is not acting solely in its role as "discretionary enforcer of the public interest" ( City of New York v FedEx Ground Package Sys., Inc., 314 FRD 348, 358 [SD NY 2016]). It does not appear that the courts of this state have spoken directly to this issue. However, it seems clear that where, as here, a governmental entity is seeking damages for injury to its interest in protecting public money expended for health insurance costs, it is not acting to enforce a public right or discharge a statutory duty; rather, it is acting essentially as a private party. And if a governmental entity institutes a suit for damages like a private litigant, it seems inequitable to the court to deny the defendant a defense or defenses which could be available against another plaintiff (see generally Department of Pub . Safety v Parker , 161 So 2d 886 [Fla Dist Ct App, 1st Dist 1964]).
For much the same reason, the court rejects as overbroad the plaintiffs' argument that the equitable doctrines of laches, estoppel, waiver, unclean hands, acquiescence and ratification cannot be interposed as defenses against the public nuisance cause of action. The plaintiffs cite a number of cases in support of their argument that governmental entities, "when acting in a capacity to enforce public rights in the public interest . . . are not subject to all equitable defenses that might ordinarily be invoked against a private actor" (Plaintiffs' Memorandum of Law at 11). The court has no quarrel with the proposition that the affirmative defenses of laches and estoppel generally may not be invoked when a government is discharging its statutory duties (see e.g. Matter of E .F.S. Ventures Corp. v Foster , 71 NY2d 359, 526 NYS2d 56 [1988]) or is seeking to enforce a public right or to protect a public interest (see e.g. Capruso v Village of Kings Point , 23 NY3d 631, 992 NYS2d 469 [2014]). The plaintiffs, however, are not seeking to restrain or abate the claimed nuisance. Rather, they seek to recover damages for the alleged harm resulting from the defendants' concerted efforts to market, promote, and sell prescription opioids. Whatever else may comprise that claim, it unquestionably includes medical and drug costs incurred on behalf of their covered employees and Medicaid beneficiaries. As the plaintiffs presented their argument only in general terms and cited no authority suggesting that equitable defenses are not available when a government seeks to recover such costs, the court finds their position wanting.
Accordingly, the plaintiffs having failed to meet the heavy burden of demonstrating that any of the subject defenses is without merit as a matter of law as it relates to the cause of action for public nuisance pleaded in the master long form complaint, and no justification having been established, therefore, for restricting discovery in the manner proposed, the motion is denied to the extent indicated above. Dated: 4/9/20
/s/_________
J.S.C.