Parents Want Wholesaler Sanctioned In Drug Death Suit
By Jeannie O’Sullivan
Law360 (April 9, 2021, 6:32 PM EDT) — The parents of a woman who fatally overdosed on an Insys Therapeutics opioid called on a New Jersey federal court Friday to sanction a pharmaceutical wholesaler for allegedly deleting documents relevant to their wrongful-death suit, saying they wasted time and money searching empty hard drives.
Rochester Drug Co-Operative Inc. had a duty to fix the “materially incomplete and unsearchable discovery” yet has repeatedly claimed that it wasn’t required to produce anything but the “defective, edited” hard drives, Deborah and David Fuller told the court in a motion.
The Fullers, who live in New Jersey, say they’re missing two complete volumes of documents relating to RDC’s contract with Linden Care, the pharmacy Sarah Fuller used before her death in March 2016 from a prescription drug mix that included the Insys drug Subsys. They’re accusing RDC of breaching federal court rules mandating that parties cure “incomplete or incorrect” discovery in a timely manner, and claim that RDC was informed of the issue on March 1 of this year.
“RDC’s actions have resulted in an enormous waste of time and $12,590.81 in wasted legal costs,” the motion said.
The Fullers’ wrongful-death suit says their daughter, who was 32 when she died, was prescribed Subsys, a fentanyl-based spray pain killer approved for cancer patients, even though she didn’t have cancer.
The March 2017 lawsuit came as the nationwide opioid epidemic reached fever pitch, prompting criminal and civil charges against Insys and other opioid manufacturers and their executives for contributing to the public health crisis by marketing the drugs outside their intended use. Insys agreed to pay $225 million to resolve the government’s claims and RDC entered into a deferred-prosecution agreement with the U.S. Department of Justice.
Insys and RDC both filed for bankruptcy protection in the aftermath. Their Chapter 11 plans were confirmed in January and February, respectively.
In their motion, the Fullers also said RDC falsely claimed that it wasn’t authorized to produce the documents sought because they were communications between RDC and federal prosecutors in New York.
In a letter to the court Friday, RDC said it was planning to inform the Fullers that it was prepared to have the parties’ information technology professionals connect to resolve the searchability issue. The matter was going to be discussed at a conference scheduled for Thursday, RDC said, but neither of the attorneys for the plaintiffs attended.
“Moreover, I would have advised that I should have more information early next week about this issue from both RDC’s criminal counsel and Linden Care. However, I was unable to present that information to the court because plaintiff’s counsel apparently ‘crossed our lines,’ ” said RDC’s letter, signed by its counsel, Roy F. Viola Jr. of Hawkins Parnell & Young LLP.
“Crossed our lines” was a reference to a letter the Fullers’ attorneys sent to the court Thursday explaining that they didn’t attend the Fuller case conference because there was a hearing on the status of Insys’ Chapter 11 case, and “we got our wires crossed in the scheduling.”
RDC also noted in its letter that the Subsys dose at the heart of the litigation wasn’t distributed by RDC but by a carrier hired by an Insys contractor. That revelation was unearthed during a “extraordinarily significant” deposition Deborah Fuller gave on Tuesday in which she authenticated photographs of the Subsys her daughter possessed on the day she died, according to RDC’s letter.
Insys and its executives, including former Chief Executive Officer John Kapoor, and Linden Care were previously defendants in the Fullers’ suit, but have been released from the case.
The Fullers are resolving their claims against Insys through the company’s Chapter 11 case and the executives were released after lodging jurisdictional arguments. Linden Care was released from the case in March 2018.
In the First Circuit, Kapoor is appealing his conviction for racketeering conspiracy and his 5½-year prison term.
An attorney for the Fullers, Richard J. Hollawell, told Law360 in an email, “RDC has been instrumental in fueling the opioid epidemic, particularly in the tri-state area.”
An attorney for RDC didn’t immediately respond to requests for comment Friday.
The Fullers are represented by Mark C. Dewland of Mark C. Dewland PC and Richard J. Hollawell.
RDC is represented by Roy F. Viola Jr. of Hawkins Parnell & Young LLP.
The case is Fuller v. Insys Therapeutics Inc. et al., case number 1:17-cv-07877, in the U.S. District Court for the District of New Jersey.