Tue 09/21/2021 11:18 AM
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In an opposition filed Monday evening, Sept. 20, to the Orange County, Calif., opioid plaintiffs’ motion for sanctions, Endo concedes that it made “inadvertent errors” during discovery in the national opioid litigation but says some of the relief sought by the plaintiffs would “punish Endo for trying to fix good-faith discovery errors” and “reward the People with a windfall that would eliminate their burden of proof on some elements of their claims.”

Endo specifically takes issue with the plaintiffs’ request to strike the testimony of former Senior Director of Clinical Affairs Linda Kitlinski in light of the company’s post-trial production of a 2009 email from Kitlinski that many plaintiffs have referred to as a “smoking gun.” According to Endo, that email and two others cited by the plaintiffs evidence that employees “responsible for executing the company’s day-to-day educational grant functions” actually adhered to guidelines requiring separation between continuing medical education, or CME, sponsorships and Endo’s sales efforts.

“While Ms. Kitlinski expressed concern in the 2009 email that her strict adherence to guidelines related to the independence of CME programs may be viewed as contrary to the company’s business interests and negatively affect her future at the company,” Endo says, “she does not suggest, at any point, that she or anyone else engaged in conduct that would compromise the independence of CME efforts.” Kitlinski’s continuing employment at Endo after the 2009 email, Endo continues, suggests that “any business-related pressure Ms. Kitlinski may have felt in the fall of 2009 dissipated over the coming months and years, and that her concerns about her employment never came to pass.”

Endo says that to the extent the emails tend to impeach Kitlinski’s testimony to that effect, “the proper remedy is to admit the emails into evidence” so Judge Peter Wilson “can consider and weigh what (if any) bearing they have on Ms. Kitlinski’s testimony.” Endo does not oppose that relief.

Endo also argues that the plaintiffs’ request for a specific finding that continuing medical education programs funded by Endo “violated applicable regulatory and industry standards” is improper because the company’s discovery misconduct “was not willful,” and such a finding would be “grossly disproportionate.”

“If the Court ultimately determines, after weighing the evidence, that certain education programs that Endo sponsored were ‘not independent’ or ‘free from Endo’s influence,’ it can make such a finding,” but “there is no legitimate basis for making that finding without reviewing the evidence,” Endo maintains.

Endo further disputes the plaintiffs’ contentions regarding late production of information related to allegedly deceptive materials left behind in physicians’ offices. “The recent production of a small amount of additional ‘materials dropped’ data was not the result of any willful discovery misconduct,” Endo asserts, and its recent production merely filled a “small ‘gap’” in “the nearly ten-year collection of ‘materials dropped’ data that the People already had.” Endo adds that the new “leave behind” information would be “cumulative” on top of the “substantial” marketing evidence plaintiffs already introduced at trial.

Endo also repeats an argument made in response to the motion for default judgment filed against the company in the New York state court opioid trial: that the plaintiffs “chose to proceed with a trial knowing that Endo was continuing to search for and produce additional documents in other related cases, including in the MDL proceeding.”

“Having made a strategic choice to proceed to trial while discovery was ongoing, the People should not, as a matter of basic fairness, be allowed to cure deficiencies in their trial presentation by pointing to recent discovery productions,” Endo concludes.

A hearing on the motion for sanctions is set for Sept. 30 at 12 p.m. ET.
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