Chapter 30
Williamson, West Virginia, Spring 2017
The commissioners in Mingo County, West Virginia, had an urgent problem—no heat. Unhappy employees were coming to work in the courthouse in Williamson, the county seat, in winter coats and mittens. And the thousands required to buy a new boiler was more than the county’s depleted budget could easily sustain.
Located along the Kentucky border, in the middle of a web of interstate highways, Mingo County had become a hot spot for opioid users and dealers in the Appalachian Mountains and the Ohio River valley. Between 2006 and 2014, drug distributors such as McKesson, AmerisourceBergen, and Cardinal Health shipped more than 43 million opioid pills into Mingo, enough for 179 tablets per person per year. Each day, hundreds of people would line up at the doors of the two pharmacies in Williamson, waiting for hours to fill their hydrocodone and oxycodone prescriptions, many of them written by physicians at the pill mills of South Florida.
To meet the demand, drug distributors shipped 9.8 million pills to Tug Valley Pharmacy on Second Avenue in Williamson’s tiny downtown between 2006 and 2014. They sent another 9.8 million to the second pharmacy, Hurley Drug Company. The two drugstores were two-tenths of a mile apart—in a town of just twenty-nine hundred.
Paul Farrell sat in the back of the courthouse meeting room, where county commission meetings were held. He had requested time to pitch the commissioners on joining his public nuisance lawsuit. The busted boiler might be a godsend for him. He was offering the impoverished county the possibility of winning a significant cash judgment.
“As you’ve read in the newspapers, the volume of pills is unforgivable,” he began. He told the commissioners that a recent multimillion-dollar settlement between the West Virginia attorney general and several drug distributors would leave little money for forgotten places like Mingo. Much of it would go to legal fees and state projects that had nothing to do with addressing the epidemic.
Paul said he planned to file his lawsuits in federal court, and counties like Mingo would be the clients; individual counties could recover the millions they had spent fighting the epidemic. For Paul, it was a deeply personal cause. He knew so many families in Huntington who had lost a relative or a friend to the opioid epidemic.
“I have a plan,” he told them, detailing his public nuisance theory. “You can pull up a chair to the table and have your own voice in this discussion.”
At first the commissioners were skeptical. Some said the epidemic was the fault of drug users, not the companies. “Isn’t this an individual’s choice, these drug users who are overdosing?” one asked.
“Look, we’re not bringing this case on behalf of the people that are addicted,” Paul responded. “We’re bringing this case on behalf of those of us that have to pay for the damage.”
“We’re almost bankrupt paying for the jails,” another commissioner said. “We’re spending all this money on emergency rooms, ambulance drivers. We can recoup that money?”
“Yes,” Paul said. “I’ll do it on contingency. If I win, then I get my expenses back and get paid. If I lose, I eat all the expenses and you owe me nothing.”
Paul left the meeting without sealing the deal. But he was making progress. While the Mingo lawmakers were debating among themselves whether to hire him, he was signing up a handful of other counties as winter turned to spring. With his West Virginia roots and passion for the cause, Paul was becoming a successful salesman. On March 9, 2017, he filed his first suit in U.S. district court in Charleston, West Virginia, on behalf of his own county, Cabell. It was a thirty-eight-page public nuisance complaint against the Big Three distributors, as well as CVS, Walgreens, Rite Aid, Walmart, Kroger, and H.D. Smith, a small drug distribution outfit with a large presence in West Virginia. Paul initially figured he would find additional counties willing to join his fledgling civil action, file a few more lawsuits, and start fighting the companies in court. He soon began to realize that he needed allies.
That spring, he ran into a lawyer he had worked with years earlier, Michael J. Fuller Jr. A college tennis star and former Florida prosecutor who owned his own plane, Fuller co-ran a successful law firm in Mississippi, McHugh Fuller. He made his living suing nursing homes for negligence on behalf of patients who had died or been badly abused. The cases were horrific. They seemed to be everywhere, and Fuller was a serial winner of large judgments. Paul had worked on a West Virginia case with him in which they secured a $91 million judgment, one of the largest in the state’s history.
Paul called Fuller, figuring he could use his expertise as well as the deep pockets of his law firm to help underwrite the litigation.
“I’ve got enough on my plate,” Fuller told him. “I’m still killing these nursing home cases.”
“C’mon, you gotta be kidding me,” Paul said.
“Sorry. Good luck.”
Paul, as always, wouldn’t take no for an answer. He went around him, contacting a trial lawyer he knew in Fuller’s firm, Amy J. Quezon. He pitched his idea to her. Intrigued, she asked Fuller if she could pursue Paul’s public nuisance theory and see where it might lead her and the law firm.
“Knock yourself out,” Fuller told her.
As Quezon dug deeper into public nuisance statutes and the potential for a large civil action, she briefed Fuller. He began to change his mind.
Fuller gave Paul a call. “Are you interested in taking this show on the road?” he asked. “There are way more communities out there than the ones in your corner of West Virginia.”
“Sure,” Paul said.
Fuller suggested they team up with a law firm in Charleston—Hill, Peterson, Carper, Bee & Deitzler. The firm was known for its work on the DuPont Teflon case that was later depicted in the movie Dark Waters. Lawyers for the plaintiffs argued that DuPont knew that C8—the key chemical it used to manufacture Teflon—was highly toxic and could cause cancer. Starting in the 1950s, the company dumped huge amounts of C8 into the Ohio River from one of its plants near Parkersburg, West Virginia. In 2017, DuPont settled the case for nearly $671 million.
Hill Peterson served as the local counsel in that case. It was brought by one of the largest mass tort litigation law firms in the nation, Levin Papantonio Rafferty, based in Pensacola, Florida. Paul knew one of its partners, Mike “Pap” Papantonio, the lead attorney in the DuPont case. Paul was beginning to see the makings of a powerhouse national team. He also knew Russell W. Budd, the partner of another large plaintiffs’ firm in Dallas, Baron & Budd, which had made its name by winning billions in asbestos-related mesothelioma lawsuits.
Paul began to imagine the possibilities. His tiny stream of cases could turn into a flood. With a who’s who of the nation’s top plaintiffs’ lawyers on his side, he saw himself leading the way and becoming the field general in the battle against the drug industry and its legions of lawyers working for the nation’s most prestigious law firms. The consortium he was trying to build would be able to contribute millions toward working up the case—taking depositions, filing discovery demands, reviewing millions of pages of documents, locating and interviewing witnesses and experts. It would also have hundreds of young associates at its disposal, hungry to handle whatever work came their way.
Paul crafted an ambitious plan to pinpoint opioid hot spots around the nation. He wanted to overlay three data sets on a map of the United States: pill distribution numbers, overdose deaths, and the distribution of benzodiazepine pills such as Xanax, which users took to boost the potency of painkillers. After identifying the hot spots, he planned to appear before local governments in those regions and pitch his public nuisance idea. They could crisscross Appalachia in Fuller’s four-seat Cessna 335 twin-prop plane.
With Hill Peterson and Levin Papantonio Rafferty on board, Paul reached out to Budd, the Dallas lawyer who could add millions more to the war chest. He sketched out his idea for Budd. “Are you interested?” he asked.
“I’m in,” Budd said.