Answer: COUNTY OF NUECES vs. PURDUE PHARMA L P

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                                County of Nueces                                          §            IN THE COUNTY COURT
                             ,                                               §
                                                                             §
                   v.                                                        §            AT LAW NO. 4
                                                                             §
                   PURDUE PHARMA L.P., ET AL.,                               §
                                                                             §            NUECES COUNTY, TEXAS




                                                                             §            IN THE DISTRICT COURT

                                                                 N           §            152nd JUDICIAL DISTRICT

                                                                             §            HARRIS COUNTY, TEXAS

                                                          ALLERGAN SALES, LLC’S
                                  ORIGINAL ANSWER TO PLAINT

                  TO THE HONORABLE COURT:

                           Defendant Allergan Sales, LLC files this Answer to Plaintiff’s Original Petition.

                                                                   General Denial

                                                                                       allegations in the Petition in accordance

                                                          e 92.  Allergan Sales, LLC demands strict proof of all allegations

                  made    by  Plaintiff,  all as  require



                                                              Plea to the Jurisdiction

                                    Plaintiff’s claims are barred because the Court lacks subject matter jurisdiction, and

                                                       s for subject matter jurisdiction.
                                                        Affirmative and Other Defenses

                           Without assuming any burden of proof that it otherwise would not bear or admitting that it

                  is in any way liable to Plaintiff, Allergan Sales, LLC asserts that Plaintiff’s claims against it are

                  barred   pursuant   to  the following    defenses,   each   of which    is raised  in the  alternative.    Allergan

                  Sales, LLC expressly reserves the right to amend these defenses as permitted by the Texas Rules



                                    Plaintiff’s  claims    are  barred,  in  whole    or  in part,  by   the  applicable   statute   of

                  limitations.

                                    Plaintiff’s claims are barred, in whole or in part, by its failure to mitigate damages.

                                    Plaintiff’s claims are barred, in whole or in part, because the injury it alleges was

                  the result of one or more crimin

                                    Plaintiff’s  claims    are  barred,  in  whole    or  in part,  by  the  learned    intermediary



                                    Plaintiff’s  claims    are  barred,  in  whole    or  in  part, by   the  doctrines   of  waiver,



                                    Plaintiff’s  claims   are  barred,  in  whole   or  in  part, because    the  First Amendment

                                                        commercial and political speech.

                                    The warnings and information that accompanied Allergan Sales, LLC’s products

                  were approved by the FDA for a product approved under the FDCA and/or otherwise meet the

                  presumption requirements in Section 82.007 of the Texas Civil Practice and Remedies Code.

                  Tex. Civ. Prac. & Rem. Code Ann. § 82.007(a) (West 2011).




                                                                            2
                                    The claims asserted in the Petition are barred and/or reduced by the assumption of

                  risk, informed consent, contributory or comparative negligence, contributory or comparative fault,



                                    Plaintiff’s injuries and damages, if any, are barred in whole or in part by the actions,

                  omissions,    and/or   conduct   of  third  parties  over   whom    Allergan    Sales,  LLC    had   no  control   or

                  authority and, thus, any recovery should be reduced or barred by such parties’ proportionate fault.

                                    Any verdict or judgment that might be recovered by Plaintiff must be reduced by

                  those amounts that have already or will in the future, with reasonable certainty, indemnify Plaintiff

                  in whole or in part for any past or future claimed economic loss from any collateral source such as

                                                             compensation, or employee benefit program.

                                    Allergan Sales, LLC’s liability, if any, will not result from its conduct but is solely

                  the result of an obligation imposed by law, and thus Allergan Sales, LLC is entitled to complete

                  indemnity, express or imp

                                    Plaintiff’s claims are barred because they are preempted by federal law.

                                    Plaintiff’s claims violate the Supremacy Cl

                                    Plaintiff’s claims are barred in whole or in part by the deference that federal and

                                                                              on law give to discretionary actions by the FDA

                  under the FDCA and regulations promulgated under the FDCA.

                                    To the extent Plaintiff’s claims are based on alleged misrepresentations made to the

                  FDA, such claims are barred pursuant to Buckman Co. v. Plaintiff’s Legal Committee



                                    Plaintiff  cannot   state  a claim   with  regard   to  warnings    and  labeling   for  products

                  because the remedy sought by Plaintiff is subject to the exclusive regulation of the FDA.




                                                                            3
                                    Plaintiff’s claims regarding warnings and labeling are barred in whole or in part by

                  the doctrine of primary jurisdiction, in that the FDA is charged under the law with determining the



                                    Plaintiff’s claims against Allergan Sales, LLC are barred or limited by the economic

                  loss rule.

                                    Allergan Sales, LLC’s rights under the Due Process Clause of the U.S. Constitution

                  are violated by any financial or other arrangement that might distort a government attorney’s duty

                  to pursue justice rather than his or her personal interests, financial or otherwise, in the context of

                  a civil enforcement proceeding.

                                    Plaintiff’s   claim   for  exemplary/punitive       damages     is  subject   to  the  following

                  limitations: (a) Chapter 41 of the Texas Civil Practice and Remedies Code, including the cap on

                  exemplary damages set out in Section 41.008 of that Code; and (b) the limits of the Due Process

                  Clause of the United States Constitution, as those limits have been applied by st

                  courts to restrict exemplary damages.

                                    Plaintiff’s claims against Allergan Sales, LLC are barred under the municipal cost



                                    If  Plaintiff  has   sustained    any   injuries   or  damages,     such   were    the  result   of

                  intervening or superseding events, factors, occurrences or conditions, which were not reasonably

                  foreseeable and in no way caused by Allergan Sales, LLC and for which Allergan Sales, LLC is



                                    Plaintiff’s  claims    and  damages     are  barred   or  limited,   in  whole    or in  part,  by

                  common law, statutory, and state constitutional constraints on the exercise of police powers by a




                                                                            4
                                    The claims asserted in the Petition are barred, reduced, and/or limited pursuant to

                  applicable    statutory  and   common      law  regarding    limitations   of  awards,   caps   on  recovery,    and

                  setoffs.

                                    Plaintiff’s   claims   are  barred    because    its alleged    loss,  damage,     injury,  harm,

                  expense, diminution, or deprivation, if any, was caused in whole or in part by Plaintiff’s ratification

                  of Allergan Sales, LLC’s allegedly deceptive or misleading conduct.

                                    Should Allergan Sales, LLC be held liable to Plaintiff, which liability is specifically

                  denied,   Allergan    Sales,  LLC    would   be  entitled  to  a set-off  for  all sums   of  money    received    or

                                                                           for the same injuries alleged in the Petition.

                                    Plaintiff’s   claims   against   Allergan     Sales,  LLC     are  not   properly   joined    with

                  Plaintiff’s claims against the other defendants in this case because the claims do not arise out of

                  the same alleged statements, actions, and omissions by all defendants in the case.

                                    Plaintiff  has   failed  to  join   one  or  more    necessary    and   indispensable     parties,

                  including   without    limitation   health  care  providers,   prescribers,   patients,

                  whom Plaintiff alleges engaged in the unauthorized or illicit prescription, dispensing, diversion,



                                    Plaintiff’s claims are barred for                                             parens patriae

                  other authority to bring the claims alleged, and

                                                                                 to Plaintiff by Allergan Sales, LLC.

                                    Plaintiff’s fraud claims against Allergan Sales, LLC are barred because they fail to

                  allege any material misrepresentation made by Allergan Sales, LLC.

                                    As   a matter   of  Texas    law,  Plaintiff   is not  entitled   to a  declaratory    judgment,

                                                     for these alleged claims.




                                                                            5
                                    Allergan    Sales,  LLC    may   assert  other  defenses   that  become    available   or  appear

                  during   the  course   of  additional   investigation    or  discovery    in this  case.   Allergan    Sales,  LLC

                  reserves the right to amend this answer to assert any such defense, consistent with the Texas Rules




                                    Allergan Sales, LLC demands a jury trial and tenders the appropriate fee with this

                  answer.



                           Allergan Sales, LLC prays that the Court dismiss the claims against it with prejudice, enter

                  a final take-nothing judgment in its favor, award it attorneys’ fees and costs, and grant such other

                                                to which it is entitled.




                                                                            6
                   Dated:    February 18, 2019                               Respectfully submitted,

                                                                                  /s/ Wesley Hill
                                                                             Wesley Hill

                                                                             Brett F. Miller

                                                                             WARD, SMITH & HILL, PLLC
                                                                             1507 Bill Owens Parkway


                                                                             Facsimile: (903) 757-2323
                                                                             wh@wsfirm.com
                                                                             bmiller@wsfirm.com

                                                                             Donna Welch, P.C.

                                                                             Timothy W. Knapp




                                                                             rothm@kirkland.com
                                                         CERTIFICATE OF SERVICE

                           I certify that a true and correct copy of the foregoing instrument was served via the Court’s

                  electronic filing system on all counse



                                                                                 /s/ Wesley Hill
                                                                                 Wesley Hill