Chapter 37
Cleveland, Ohio, December 2017
Downtown Cleveland was decked out for the holidays. A fifty-foot Christmas tree, swathed in bands of colorful lights, towered over Public Square. But two blocks away, the 150 super lawyers with super egos from ninety-seven law firms who had gathered in a cavernous conference hall at the Hilton hotel were not in a festive mood. It was two weeks before Christmas and the assembled attorneys were trying to decide who among them should lead the multidistrict litigation. There were only three co–lead counsel slots and sixteen openings on the plaintiffs’ executive committee. Simple math said a lot of people in the convention center would be leaving Cleveland without much of a role in the litigation.
Jayne Conroy had seen her share of these MDL conferences, but nothing like this. There were so many cases—206 and counting. With two dozen drug companies named as defendants and hundreds of millions in legal fees at stake, the conference was turning into a knife fight. Conroy watched the jockeying and the backstabbing with dismay. Lawyers formed factions. Some faced off against one another like contestants in a TV game show. They promoted some attorneys to take leadership positions. They trashed others as undeserving, untrustworthy, or worse.
This is horrific, Conroy thought.
Judge Polster had ordered the attorneys to pick a slate to lead the litigation and sit on the plaintiffs’ executive committee. The committee was a “superstructure” of lawyers. It would be responsible for assigning law firms to manage every aspect of the case, filing legal briefs, and carrying out the crucial discovery process—issuing demands for corporate documents and emails, taking depositions of key witnesses, and preparing the mountains of material for trial.
Each week, more and more cases were being added to the MDL and more and more lawyers were demanding a piece of the action. Several law firms had already invested enormous amounts of time and money. Others had done next to nothing, aside from filing complaints in their local courthouses, many of them based on Paul Farrell’s public nuisance theory. Lawyers jousted on the convention center floor for leadership positions. The politicking threatened to upend the conference.
Mike Papantonio, who had been through numerous multidistrict litigation fights, tried to calm the packed hall. He stood before his colleagues and pleaded with them to put their self-interests aside.
“This is an epidemic unlike anything we’ve ever seen,” Papantonio began. “It affects the families of everyone in this room, the communities of everyone in this room, and this is an opportunity for us to do some public good. There’ll be room for everyone to join the fight.”
That was not entirely true. There would be winners and losers, and the attorneys from some of the nation’s most feared plaintiffs’ law firms were not accustomed to losing. Everyone wanted to be a part of the historic case. And everyone wanted a cut of the billions in damages that they hoped they would see one day.
“We need to check our egos at the door,” Papantonio told them.
One of the biggest egos in the hall belonged to Paul. What he lacked in MDL experience he made up for with a supreme confidence that sometimes veered into arrogance.
Paul was unimpressed by the sea of lawyers. They were businessmen, not litigators, signing up clients, aggregating cases, and leveraging them to score lucrative settlements. They didn’t want to go to trial; they didn’t want to do the work involved in a protracted and successful litigation. And Paul was certain they had no feeling for the magnitude of the epidemic and the individual, family, and community misery it had wrought. Paul was convinced that he knew the case better than any other lawyer in Cleveland that day. This was about people like Mark Zban. This was about places like Huntington. This case was his.
He viewed lawyers like Paul Hanly and Joe Rice as aging athletes, past their prime but still trying to stay in the game. He saw himself as the young phenom, and he didn’t care who he offended—other lawyers on his team, opposing counsel, even judges. I don’t give a shit if the judges get mad, he thought.
Shortly before Christmas, a faction that included members of the old guard emerged with a partial framework for the litigation team, and they appeared to have significant support in the hall. Hanly, with his long and successful record of litigating mass torts, would serve as one co–lead counsel. Rice, who helped to negotiate a settlement with the tobacco industry, would serve as another. There was one remaining slot, and nothing was final. Some lawyers, reading the writing on the wall, stormed out of the conference hall and flew home from Cleveland, furious they had not been considered for a leadership position. Others continued to lobby for themselves and members of their own consortiums.
On Christmas Eve, Hanly received a call from Russell Budd, the lawyer from Dallas who had teamed up with Paul Farrell and Papantonio. “Look, we have to have one of our consortium as a co-lead,” Budd told Hanly. “If you support that, we will support you and Joe.”
“Who’s that going to be?” Hanly asked.
“Paul Farrell.”
Both Budd and Papantonio believed that Paul deserved a leadership role because he had developed the public nuisance theory for the drug distribution litigation and had filed a batch of cases before the rest of the team.
Hanly scoffed at the suggestion. “He doesn’t have any MDL experience,” he said.
“Yeah, I know. But I’m going to be here and we have a big team,” Budd said. “He’s our choice.”
Hanly called Rice. They reluctantly agreed. They knew Paul had worked tirelessly to develop the cases in West Virginia and southern Ohio. They also worried about the political fallout if they excluded him. The last thing they wanted was a negative story in the Wall Street Journal, portraying them as money-hungry interlopers, bigfooting the case and taking it away from the man from the state with the highest opioid death rate in the nation. The lifestyles of high-profile plaintiffs’ lawyers—splendid beach houses in Miami, hundred-foot yachts, and private Gulfstream jets funded by the billions in settlements they had scored over the years—would feed into the narrative of trial lawyers hijacking the case for personal profit. They didn’t think that was true, but the optics would be disastrous. They realized they had to put Paul on the leadership committee. And Paul was prepared to fight for what was rightfully his. It was his legal theory. He had the largest number of clients. And he had assembled the litigation consortium. For Paul, it had become personal.
Under no circumstances am I going to relinquish control, he thought.
With the litigation slate set and dozens of law firms involved in the MDL, the lawyers devised a war plan. No weekends off. No vacations. Twelve-hour days, probably more. They divided the case along three tracks: drug distributors, manufacturers, and pharmacy chains. Each firm would be responsible for “burning to the ground” different companies: unearthing every detail about the firm, its executives, its employees, and its drug distribution and manufacturing networks. They would also determine which drug company employees to depose, which documents to seek, and who would review them and catalog them. Paul would oversee all of the distributor cases; Hanly and Conroy, the manufacturers; Papantonio and his firm, the pharmacies. Some lawyers were assigned to investigate specific companies. Papantonio’s firm took McKesson. Mike Fuller and Amy Quezon would dig into Cardinal Health and The Alliance. Budd and his lawyers would handle AmerisourceBergen and the lobbying efforts behind the Marino-Blackburn bill. Settlement negotiations would be handled by Rice and Paul J. Geller, the managing partner of a Boca Raton, Florida, law firm. Geller had earned a national reputation by notching numerous wins, including a $265 million judgment against Massey Energy, a West Virginia coal company found liable for a mine explosion that killed twenty-nine people in 2010. Also on the negotiation team were Elizabeth J. Cabraser, who had founded one of the country’s largest plaintiffs’ law firms, and Christopher A. Seeger, who had negotiated a $1 billion settlement on behalf of NFL players who had suffered concussions and brain injuries. Peter Mougey, a lawyer from Levin Papantonio Rafferty, joined the negotiation team.
The lawyers assembled constituted a dream team of litigation talent, one of the best ever, if not the best, one of broad and deep experience that had won tens of billions in settlements and jury verdicts against some of the biggest industries in the country.
Rice and the two Pauls had agreed on the lineup of attorneys and responsibilities, but Hanly still wasn’t completely happy. He thought his less experienced co-counsel didn’t appreciate the complexities of multidistrict litigations and was unwilling to learn. They were vastly different than the med-mal cases Paul had pursued. Those cases usually involved one defendant—a hospital or a pharmaceutical company—and one patient or a number of patients who were seriously harmed by a doctor or a product. They were straightforward and easier to prove, and the defendants were backed by deep-pocketed insurance firms willing to settle for big money, albeit reluctantly. The opioid litigation was becoming the most complex case Hanly had ever seen. Not only did it involve two dozen defendants, but they had different roles in the opioid supply chain—manufacturers, distributors, and pharmacies. Payouts by the publicly traded drug companies and pharmacies could lower their stock prices. The companies would be loath to let that happen. Adding to the complexity was that numerous government agencies regulated the drug industry—the DEA, the FDA, and pharmacy boards in every state. What role did they play in the epidemic, and would the drug industry try to raise their shortcomings as a defense?
Hanly didn’t know if Paul was ready. He had seen lawyers like him before. He’s just a gunslinger, Hanly thought.
Hanly also understood that West Virginia had been wrecked by the epidemic and Paul wanted revenge. But as a co-counsel of the MDL, Paul would now be representing hundreds of communities across the country, not just a handful in Appalachia.
He’s taking this way too personally, Hanly thought.