Defendants seek sanctions in state opioid litigation

SANTA ANA -- O'Melveny Myers LLP attorneys want the state sanctioned for what they describe as flagrant discovery violations in the California state opioid litigation, calling for the four-jurisdiction plaintiffs' team to be excluded from presenting what could be key evidence.

The request on behalf of Janssen Pharmaceuticals and its parent Johnson & Johnson follows discovery responses the attorneys say are "not only deficient but raise serious questions about whether Plaintiff has any factual basis for many of its allegations."

A court-appointed discovery referee, Stephen G. Larson of Larson O'Brien LLP, previously ordered the state to provide additional information to 19 special interrogatories served in April 2018, saying the information requested was "relevant" and relates "directly to the allegations" in the complaint.

Larson warned that if the state didn't "respond thoroughly," it risked losing the case through summary judgment or at trial. Still, the state's latest responses "include virtually no factual information at all" and instead repeated an answer to a previous interrogatory through cross referencing and incorporation.

"This gamesmanship violates the California Discovery Act and is in direct violation of the Discovery Referee's order," according to a motion for sanctions filed by O'Melveny Myers partners Michael G. Yoder and Charles C. Lifland.

"This also raises the question of whether Plaintiff has either chosen to deliberately ignore the Discovery Referee or simply has no factual basis for many of its claims," the O'Melveny motion adds.

The dispute is the latest twist in a major lawsuit that's been at the forefront of a surge in litigation over the nation's opioid addiction epidemic but has recently lost traction as a state lawsuit in Oklahoma plows toward a May 27 trial and multi-district litigation in Ohio continues to draw heavy attention.

A June trial date that had been set for nearly a year was recently taken off calendar as Orange County Superior Court Judge Peter J. Wilson continues to consider a plaintiffs' request to bifurcate the liability and damages portions of the trial, which will be heard by him instead of a jury.

The lawsuit is a collective action on behalf of the state of California that was initiated by Orange and Santa Clara counties in 2014 with the city of Oakland and Los Angeles County joining last June.

Private attorneys representing the plaintiffs include Mark P. Robinson, Jr., of Robinson Calcagnie Inc. They're expected to file opposition to the sanctions motion this month. Robinson declined comment on Wednesday, citing the ongoing litigation and the public entities involved.

Janssen issued a statement Wednesday defending its marketing and promotion of prescription pain medications as "appropriate and responsible."

"The allegations made against our company are baseless and unsubstantiated," according to the statement. "In fact, since 2008, our opioid medications have accounted for less than one percent of the U.S. market for this class of medications (including generics)."

The lawsuit seeks a statewide injunction as well as civil penalties from opioid manufactures the government entities argue are liable for California's opioid crisis by falsely advertising the drug and perpetuating a public nuisance that's morphed into a full-fledged crisis.

There are three claims: false advertising, public nuisance and unfair competition. People v. Purdue Pharma (O.C. Super. Ct., filed May 21, 2014).

The discovery currently in question involves the identities of doctors or other health care providers who were influenced by wrong or otherwise actionable statements from Janssen regarding its prescription opioid drugs as well as factual bases for its unfair competition and false advertising claims.

The sanctions motion is to be considered by Larson tentatively on April 26.